A protester waves a folding fan while standing in front of a California National Guard outside the North Los Angeles Federal Building during a “No Kings” protest on June 14.
Photo: Stephen Lam/San Francisco Chronicle via Getty Images
It’s perfectly fine — at times necessary, even — to start our legal assessment with an acknowledgment that we just don’t know for sure. That’s especially true in the Trump era, as the president routinely seeks opportunities to push the outer boundaries of executive power. From his characteristically transactional perspective, why not? If he wins, great: more power. And if he loses, then it’s back to the status quo.
Let’s also recognize that “Is this thing a good idea?” and “Can he do this thing?” are two different questions that sometimes yield different outcomes.
Take, for example, President Trump’s federalization and activation of National Guard troops in California. It’s a dreadful idea to bigfoot state law-enforcement leaders and deploy National Guard troops into an environment that is more street skirmish than hostile uprising. But that doesn’t mean it’s not the president’s decision to make. Our legal system is typically concerned more with process than results, and sometimes the law allows the chief executive to do stupid things.
Trump relied on a federal law passed in 1903 that empowers the president to deploy the National Guard to quell a “rebellion or danger of a rebellion” or when the president cannot otherwise “execute the laws of the United States.” This is not the much-discussed but not (yet?) invoked Insurrection Act, through which the president could enable the military to perform civilian law-enforcement functions. The law at issue here lacks any memorable title; it’s just good ol’ Section 12406. It has been invoked only once before, in 1970 when President Richard Nixon had the National Guard deliver mail during a postal-workers strike; this time’s a smidge different. And, because the 1970 incident never made its way into court, we have no on-point caselaw, or anything all that close.
Perhaps sensing the legal vacuum and hoping to create favorable precedent, the California plaintiffs — Governor Gavin Newsom, represented by state attorney general Rob Bonta — engaged in a bit of opportunistic judge shopping. They chose to file their lawsuit not in the Central District of California (which includes Los Angeles, the primary venue of the protests) or the Eastern District (location of the state capital, Sacramento), but rather in the famously liberal Northern District, which includes San Francisco, and where nothing especially relevant happened. It worked, temporarily. The plaintiffs drew Judge Charles Breyer, a Clinton nominee and brother of former Supreme Court liberal stalwart Justice Stephen Breyer.
Judge Breyer ruled against Trump on every issue, procedural and substantive alike, at times arguably giving the state plaintiffs more than they had even asked for. The judge concluded there was no rebellion or danger of rebellion, that the National Guard was not necessary to enforce federal law, and that Trump had violated various procedural requirements. Accordingly, the judge reversed the president’s deployment of the National Guard, effective at noon the next day. Newsom promptly threw himself a party, playacting like a Hollywood sheriff and growling that “the Guard will be back under my command — and Donald Trump will be relieved of his command at noon tomorrow.” Cool line, but it remained true for all of about 180 minutes, at which point the Ninth Circuit Court of Appeals stepped in and put Judge Breyer’s ruling on temporary hold.
Late Thursday, the Court of Appeals reversed Judge Breyer’s ruling, as it had signaled with its immediate pause of his decision. A unanimous three-judge panel — featuring two Trump nominees and a Biden nominee — held that Judge Breyer had erred by essentially substituting his own judgment for the president’s. The appeals court did not find that a president’s actions are entirely unreviewable, as Trump’s team had urged, but it did conclude that the president’s determination to deploy the National Guard under Section 12406 is due broad deference by the judiciary. The courts must uphold the president’s determination, the appellate panel ruled, unless it is “obviously absurd or made in bad faith.”
Applying its “highly deferential” standard of review, the Court of Appeals found that Trump’s activation of the National Guard was within his proper purview as president — though the judges notably punted on the “rebellion” issue and determined instead that the deployment is necessary to enforce federal laws. The Court also rejected a ridiculous argument by California that the law requires the governor to consent, and that the governor has the power to reverse the president on an issue of federal law enforcement and national security.
Hence, Trump’s deployment of the National Guard stands. California and Newsom may seek to bring the case to the Supreme Court, but they’ll fare no better there. There’s no way any of the Court’s six conservative justices will adopt Judge Breyer’s expansive view of his own judicial power and a correspondingly minimalist view of executive power. Some of the liberals might even join a ruling against California, as the Biden-appointed judge did in the Ninth Circuit.
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The operative legal question here is not, at bottom, whether Trump was wise to deploy the National Guard. Even if we stipulate that his actions were unnecessary and foolish, the real question is this: Who gets to decide? Making matters more complicated, our laws sometimes specifically provide that federal courts can or cannot review the actions of the president. But the National Guard statute unhelpfully specifies neither; this is not at all unusual, as many laws land into the same murky in-between. It then falls to the courts, on a case-by-case basis, to determine the respective roles of the judicial and executive branches.
The California plaintiffs here had a superficially appealing argument: Of course a federal judge can review the president’s actions and can modify or reverse them if they’re illegal; that’s precisely why we have judges and courts and checks and balances. To hold otherwise would create an unaccountable monarchy.
But while the courts generally hold the power of judicial review — that’s the first case they teach in law school, Marbury v. Madison — they don’t always have to exercise it, and that power can be limited by Congress or the Constitution.
Let’s set aside the Trump of it all for a moment (always a helpful clarifying exercise). Who exactly is Judge Breyer — an unelected political appointee who took office 27 years ago, one of over 600 federal district-court judges in the United States, sitting in San Francisco — to override the duly-elected president, the commander-in-chief, on issues of national security and deployment of military and quasi-military forces? What if Joe Biden or Barack Obama had determined that some use of the National Guard was necessary, but a Reagan-appointed district-court judge in Arkansas disagreed? Whose position prevails? Whose position should prevail?
Don’t be swayed by hyperbole about how, if the courts cannot or choose not to review certain presidential actions, we will wind up with a king or a dictator in the Oval Office. First, as we’ve seen throughout Trump’s first six months back in office, there are plenty of contexts in which courts absolutely can intervene — just not all of them. Indeed, judges have temporarily blocked major Trump initiatives on immigration, federal spending, economic policy, and the federal workforce. Second, as the Ninth Circuit made clear, there are limits to the president’s discretion, if it should step beyond the broad boundaries of reasonable decision-making. And even if the courts can’t or won’t review certain executive actions, the president still faces political accountability. A president might lose support in Congress, with the states, or among the general public. And he could be impeached (at least in theory; we know that won’t happen in the current political environment).
There’s a bit of lawyerly arrogance, at bottom, to the assumption that the courts must always hold the power to reassess and potentially unwind the actions of the president (any president) if a judge happens to disagree. Not every issue of American public life must or should be resolved by the courts. Sometimes our constitutional system leaves a decision to the president, even if the end result is nonsensical.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
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