Ninth Circuit Allows Trump to Federalize National Guard
Panel defers to president's determination that protests prevented execution of the laws.
The US Court of Appeals for the Ninth Circuit has unanimously reversed a lower court decision and ruled that at least for now President Trump can federalize the National Guard and deploy National Guard troops to LA in response to protests there.
The Court of Appeals looked at the statute under which Trump acted, which only allows the President to federalize the National Guard troops and deploy them over the objection of the Governor if: (1) the United States, is invaded; or (2) there is a rebellion; or (3) the President is unable with the regular forces to execute the laws of the United States.
The appellate panel did not rule as to the first two provisions, instead saying that the courts must give broad deference to the President in this area and that given such deferential review it was within the scope of presidential authority to determine that the protest activity was sufficiently interfering with law enforcement that deployment was justified, despite the fact that ICE had itself made 44 arrests on June 6th and did not seem to be significantly impeded by the protests.
I think this decision is wrong and gives far too much deference to the executive. But it’s important to recognize that even this appellate panel rejected the government’s contention that courts cannot review the president’s decision at all, which is actually a big deal.
In any event, the case now returns to Judge Breyer for a full trial on the merits, and there are new facts on the ground.
First, even if deployment was permissible originally, for how long can the President still say that the federal government is unable to execute the laws and for how long do courts need to defer to that determination?
Second, the President also deployed the Marines, who are not authorized at all under the statute that was at issue in this case, which only addresses the National Guard. So, under what authority are the Marines being deployed domestically, and is that deployment legal or does it infringe California’s sovereignty and violate long-standing US law that military troops cannot be deployed domestically except under extreme circumstances?
Third, under federal law the National Guard troops cannot engage in direct law enforcement activities, so there may be a question as to whether the deployment is properly limited to defending federal buildings and personnel.
Those three issues may arise as the case continues in the lower court, but for now, the National Guard can remain under federal control and be deployed in Los Angeles.
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