The Department of Justice has argued that courts cannot deny the president's ability to federally enlist militia in an attempt to justify President Donald Trump's mobilization of the National Guard against protestors in Los Angeles, California.
During a hearing at the 9th Circuit U.S. Court of Appeals on Tuesday, DOJ representatives attempted to convince a three-judge panel to approve an emergency stay of a lower court order, hence permitting Trump's deployment of the National Guard to Los Angeles, CBS News reported.
The hearing was presided over by two Trump-appointed judges, Mark Bennett and Eric Miller, and one Biden-appointed judge, Jennifer Sung.
During the hearing, DOJ Assistant Attorney General Brett Shumate argued that the constitutional violation found with Trump's deployment of the National Guard by U.S. District Judge Charles Breyer "interferes with the president's commander-in-chief powers based on an erroneous interpretation of the applicable statute." He was largely referencing 10 U.S. Code § 12406.
According to the statute, the United States "may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary" under threats of a foreign invasion, a rebellion or when the president is "unable with the regular forces to execute the laws of the United States."
According to Shumate, Breyer's order "upends the military chain of command," would allow governors to veto military orders from the president and sets judges on a path to come into conflict with the commander-in-chief.
Shumate argued that local authorities are "either unable or unwilling to protect federal personnel and property from the mob violence ongoing in Los Angeles." He added that the president was within his discretion to call in the National Guard, claiming that the "violent riots in Los Angeles constitute a rebellion against the authority of the United States" and left him unable to execute federal laws.
This assertion caused Bennett to question if Shumate believed that a president invoking the statute with "no support" meant that the court had no role at all in determining whether the president correctly invoked it.
"That's correct," Shumate replied, "because if the statute is unreviewable, it's unreviewable."
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