CNN
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A federal appeals court on Tuesday spent more than an hour grappling with whether President Donald Trump unlawfully federalized thousands of members of California’s National Guard to beef up security in Los Angeles amid unrest over immigration enforcement.
A three-judge panel of the 9th US Circuit Court of Appeals did not immediately decide on a request from the Trump administration to extend its pause on a federal judge’s ruling that required the president to relinquish control of the guardsmen.
Judge Charles Breyer last week directed the president to do so after concluding that Trump had violated several provisions of the law he invoked in order to take control of the troops, including one that requires presidents to issue an order “through the governor” when they want to federalize state troops.
But at least two members of the panel, both appointed by Trump, appeared skeptical of that finding as they probed an attorney for California over his arguments that Trump wrongly sent the order to the state’s top general.
“It would seem like the state has made the adjutant general effectively the substitute for the governor in this context. So why wasn’t it enough that they sent it to that officer?” Judge Mark Bennett told Samuel Harbourt, an attorney for California.
Judge Eric Miller said he found the state’s arguments represented a “very roundabout way of imposing a consultation requirement” that he didn’t seem to think existed in the law.
California has argued that the law, at a very minimum, required the president to give the order directly to Democratic Gov. Gavin Newsom, who would then have a chance to consult with Trump about his plans.
Shortly after Breyer issued his order last week, the 9th Circuit – at the request of the Trump administration – quickly put the decision on hold to give itself more time to consider whether the order should be paused for a longer period.
Either side could appeal the 9th Circuit’s eventual decision up to the Supreme Court on an emergency basis.
Bennett and Miller on Tuesday also pressed an attorney for the Trump administration about whether the president violated other provisions of the law at issue, including ones that require there to be certain factual predicates before the statute can be invoked.
But the attorney, Brett Shumate, repeatedly made clear that he didn’t think federal courts had a role to play in second-guessing the president’s determinations – an argument Breyer roundly rejected last week.
Shumate at one point argued that there is “no role for the court to play” in reviewing whether Trump properly followed the statute.
Bennett seemed especially interested in those arguments, at one point asking the DOJ lawyer: “Is it your view that if the president or a future president simply invokes the statute, gives no reasons for doing it, provides no support for doing it, and there is nothing which would appear to a court to justify it, that the court still has no role at all in determining whether” he violated it?
“That’s correct. If the statute is unreviewable, it’s unreviewable,” Shumate replied.
A third member of the panel – Judge Jennifer Sung – posed few questions during Tuesday’s hearing. But at one point, she asked Harbourt whether the court – as it considers whether the conditions were ripe for Trump to federalize the guardsmen – could look at more than what was in Trump’s original memo from June 7 that directed his defense secretary to federalize the California National Guard. Harbourt said yes.
Tuesday’s hearing unfolded as the situation in Los Angeles has calmed significantly since last week, when the legal fracas over Trump’s decision to send troops to the streets of America’s second-largest city began after a weekend of unrest there.
But both sides presented dueling pictures of the current conditions on the ground in Los Angeles, with Shumate arguing that the deployed guardsmen are necessary to “prevent breaches of federal buildings and to protect ICE officers when they are conducting law enforcement operations.”
The troops are merely acting as a protective force, he continued, performing an “escort function” rather than carrying out law enforcement activity.
Harbourt, however, told the judges that allowing troops to remain on the ground in Los Angeles would exacerbate the situation, including by diverting one-third of the state’s militia away from other potential emergencies in the Golden State.
Granting the government’s request for a longer pause of Breyer’s ruling, Harbourt argued, would “defy our constitutional traditions of state sovereignty, of providing judicial review for the legality of presidential action, of safeguarding our cherished rights to political protest.”
This story has been updated with additional details.
