The 9th U.S. Circuit Court of Appeals decided Thursday to leave troops in Los Angeles in the hands of the Trump administration while California’s objections are litigated in federal court, finding the president had broad — though not “unreviewable” — authority to deploy the military in American cities.
“We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard … is completely insulated from judicial review,” Judge Mark J. Bennett of Honolulu, a Trump appointee, wrote for the appellate panel. “Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor … our review of that decision must be highly deferential.”
Legal scholars said the decision was expected — particularly as the 9th Circuit has moved from the country’s most liberal to one of its most “balanced” since the start of Trump’s first term.
“It’s critically important for the people to understand just how much power Congress has given the president through these statutes,” said Eric Merriam, a professor of legal studies at Central Florida University and an appellate military judge.
“Judges for hundreds of years now have given extreme deference to the president in national security decisions, [including] use of the military,” the expert went on. “There is no other area of law where the president or executive gets that level of deference.”
The appellate panel sharply questioned both sides during Tuesday’s hearing, appearing to reject the federal government’s assertion that courts had no right to review the president’s actions, while also undercutting California’s claim that President Trump had overstepped his authority in sending troops to L.A. to quell a “rebellion against the authority of the United States.”
“All three judges seemed skeptical of the arguments that each party was making in its most extreme form,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at New York University’s Brennan Center for Justice.
“I was impressed with the questions,” she went on. “I think they were fair questions, I think they were hard questions. I think the judges were wrestling with the right issues.”
The ruling Thursday largely returns the issue to U.S. District Judge Charles R. Breyer.
Unlike Breyer, whose temporary restraining order on June 12 would have returned control of the National Guard to California, the appellate court largely avoided the question of whether the facts on the ground in Los Angeles amounted to a “rebellion.”
Instead, the ruling focused on the limits of presidential power.
Bennett’s opinion directly refuted the argument — made by Assistant Atty. Gen. Brett Shumate in Tuesday’s hearing — that the decision to federalize National Guard troops was “unreviewable.”
“Defendants argue that this language precludes review,” the judge wrote. “[But Supreme Court precedent] does not compel us to accept the federal government’s position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.”
He also quoted at length from the 1932 Supreme Court decision in Sterling vs. Constantin, writing “[t]he nature of the [president’s] power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order.”
Shumate told the judge he didn’t know the case when Bennett asked him about it early in Tuesday’s hearing.
“That is a key case in that line of cases, and the fact he was not aware of it is extraordinary,” Goitein said.
Merriam agreed — to a point.
“That’s a nightmare we have in law school — it’s a nightmare I’ve had as an appellate judge,” the scholar said.
However, “it’s actually a good thing that the attorney representing the U.S. was not planning to talk about martial law in front of the 9th Circuit,” Merriam said.
One thing Thursday’s ruling did not touch is whether the administration violated the Posse Comitatus Act by deputizing the military to act as civilian law enforcement — an allegation California leveled in its original complaint, but which Breyer effectively tabled last week.
“The Posse Comitatus Act claim has not been resolved because it was essentially not ripe last Thursday,” when troops had just arrived, Goitein said. “It is ripe now.”
“Even if the 9th Circuit agrees with the federal government on everything, we could see a ruling from the district court next week that could limit what troops can do on the ground,” she said.
In the meantime, residents of an increasingly quiet Los Angeles will have to live with the growing number of federal troops.
“[Congress] didn’t limit rebellion to specific types of facts,” Merriam said. “As much as [Angelenos] might say, ‘This is crazy! There’s not a rebellion going on in L.A. right now,’ this is where we are with the law.”
