On Thursday, June 19th, a three judge panel from the Ninth Circuit Court of Appeals put out a unanimous ruling that allowed President Donald Trump to continue to direct the California National Guard to respond to protesters in Los Angeles that were, in general, non-violent, and were protesting the Trump administration’s recent arrests of immigrants in LA despite the fact that state officials objected.
To be specific, the Trump administration ordered around 4,000 California National Guard troops and 700 Marines into LA when protests erupted over U.S. Immigration and Customs Enforcement raids of downtown businesses and various Home Depot parking lots, where day laborers often gather in order to signal that they are looking for work.
Newsom sued Trump in federal court on June 9, arguing that Trump’s deployment of the troops violates the 10th Amendment and the Administrative Procedure Act by exceeding his constitutional authority which requires a governor’s consent before the president can snatch a state’s National Guard for domestic law enforcement.
And mind you much of this snatching of the CA Guard, was aimed at Los Angeles, never mind that LA has the third largest police department in the nation, and LA County has the largest sheriff’s department in the nation.
The matter came to the Ninth after District Judge Charles Breyer issued a temporary restraining order requiring the president to return control of approximately 4,000 California National Guard troops to Gov. Gavin Newsom. The threesome from the Ninth reversed the lower court,
Although two of the three judges were appointed by Donald Trump (Judges Eric Miller and Mark Bennett), the judges backgrounds are varied, and none of their backgrounds directly suggest that they would be easily persuaded to rule with Trump’s lawyers.
For example, as the former Attorney General of the State of Hawaii, Mark Bennett might not feel friendly toward the notion of a sitting president snatching control of his state’s National Guard.
In contrast, Eric Miller, who clerked for Clarence Thomas, was opposed in his nomination to the Ninth by two Native American groups, reportedly based on his record in some high-profile cases involving tribal rights. Yet, when questioned on the topic, Miller defended himself as follows:
“In any of those cases, whether with the government on the side of the tribes or in private practice in a number of cases opposed to tribes, my role has been that of an advocate,” Miller said. “My job as an advocate is not to advance my own views, but to advance the client’s views.”
So who would be the client in this case?
In contrast, U.S. Circuit Judge Jennifer Sung, a Joe Biden appointee, who is the first lawyer from the Asian American Pacific Islander community to be nominated to a federal judgeship in Oregon, where she has spent her career advocating for the rights of workers, among other accomplishments.
Despite their differences, in the end, Judges Eric Miller, Mark Bennett and Jennifer Sung came together to write that Trump likely lawfully exercised his power under a statute that authorizes federalization of the National Guard when the president “is unable with the regular forces to execute the laws of the United States.”
The panel did however fully reject the theory from Trump administration lawyers who asserted that courts cannot review a president’s decision to activate the National Guard.
Governor Newsom put out a statement after the 38-page unanimous ruling, in which the governor basically called the ruling a victory.
“The court rightly rejected Trump’s claim that he can do whatever he wants with the National Guard and not have to explain himself to a court,” wrote Newsom. “The President is not a king and is not above the law. We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens.”
Attorney General Rob Bonta also pronounced the case “far from over,” after Thursday’s ruling.
“While the court did not provide immediate relief for Angelenos today, we remain confident in our arguments and will continue the fight,” said Bonta.
Much in the 38-page ruling from the three judge panel, suggests that Bonta is correct.
For example there is this:
“Plaintiffs argue that this case “marks the first time that a President has invoked Section 12406 to order troops to patrol the streets of a major American city in support of routine civil law enforcement activities—while civil law enforcement officials at the local, state, and federal level all remain available and are doing that work.
“We emphasize, however, that our decision addresses only the facts before us. And although we hold that the President likely has authority to federalize the National Guard, nothing in our decision addresses the nature of the activities in which the federalized National Guard may engage.”
Exactly
More as we know it.