On Thursday, President Donald Trump scored a temporary victory after an appeals court ruled that he can continue deploying the National Guard as part of his watch-me-play-fascist-on-TV response to anti-ICE protests in Los Angeles. The decision accepted Trump’s premise that conditions in L.A. permit him to take control of the guard—but it rejected his claim that such decisions should be entirely unreviewable by courts.
That latter part of the ruling is important. It’s potentially something of an obstacle to his ongoing effort to assume quasi-dictatorial powers for himself—for now, anyway.
Trump apparently processed only the first part. He posted the following, in a reference to California Governor Gavin Newsom, who’s suing to block Trump from taking over his state’s guard (emphasis added):
The Judges obviously realized that Gavin Newscum is incompetent and ill prepared, but this is much bigger than Gavin, because all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done.
In short, Trump seized on this mixed ruling to threaten to send in the National Guard anywhere in the United States if and when he decrees it “necessary.” The scare quotes are mine, because on many fronts, Trump is testing how far he can get by inventing ways to claim such actions are “necessary,” a power he and his advisers see as boundless.
All of which highlights a deeper conundrum here: What can the courts—and the rest of us—do in the face of a president whose bad faith and willingness to concoct pretexts for abusing his powers basically have no bottom?
The new ruling is not encouraging. The relevant law says Trump can federalize the National Guard only if we’re under foreign invasion or the threat of rebellion, or if the president can’t otherwise execute federal laws. A lower court had found, among other things, that Trump had not met this requirement—because what’s happening in L.A. does not come close to meeting those criteria.
But the Ninth Circuit Court of Appeals has now ruled otherwise. It found that Trump’s lawyers have presented sufficient evidence that the protests and violence are in fact impeding the execution of laws. That’s too bad: As legal expert Elizabeth Goitein explains, the facts on the ground don’t remotely support that assertion, and the court reached this position in part by granting Trump, as president, overly expansive deference to simply declare it to be the case.
This highlights an even bigger challenge. Beyond the on-the-ground specifics in L.A., Trump has been on an extraordinary rampage of manufacturing pretexts to unlock all sorts of emergency powers for himself on many fronts. At every turn, those pretexts have been rooted in staggering bad faith.
This has become so glaring that two Trump-appointed judges have sounded alarms about it. Trump has claimed we’re under foreign “invasion” to fake-justify using the 1798 Alien Enemies Act to summarily rendition people, some to foreign gulags. But District Judge Fernando Rodriguez ruled that letting Trump “unilaterally define” when we’re under invasion by decree would “remove all limitations” on his authority.
Similarly, Trump has preposterously justified sweeping tariffs on most global imports by designating trade deficits a national emergency. But Timothy Reif, a Trump-appointed judge on the U.S. Court of International Trade, joined a ruling that excoriated that claim, warning that this risks letting Trump concentrate “unbounded authority.”
Trump and his advisers want his powers to decree emergencies—unlocking vast additional authorities—to be placed beyond judicial review entirely. Importantly, the court in the L.A. case rejected that argument. It suggested this would effectively grant Trump the power to send in the National Guard based on a decision that is “obviously absurd or made in bad faith,” or one “based on no evidence whatsoever.”
The rub is that this is exactly what Trump and his advisers believe he should and does have the power to do. David French looked at the language of Trump’s top advisers as he dispatched troops to L.A. and noticed something revealing: They almost seemed to be anticipating that this move would inflame the situation, and even appeared to be hatching, in real time, fake justifications for a more extreme military response later.
The assumed power to summon emergencies and extraordinary national threats into existence by fiat, and then to claim expansive governing authorities on that basis, is “a standard tactic of various authoritarian regimes around the world,” as Ilya Somin noted on The New Republic’s Daily Blast podcast.
Trump’s efforts along these lines, along with the GOP Congress’s refusal to check Trump, have plunged us into an unprecedentedly dangerous situation. “We’ve never seen anything like this,” Georgetown law professor Stephen Vladeck told me.
While presidents have long stretched their emergency authorities, Vladeck said, this moment is different in degree and kind. We’ve seen a far greater exercise of “transparent bad faith” in Trump’s legal rationales, he noted, but also a range of new experiments in ways to abuse presidential power.
“We’ve never seen transparently cynical domestic deployments of the military,” Vladeck said. “We’ve never seen transparently retaliatory executive branch conduct. There isn’t even a patina of an attempt to rationalize what they’re doing.”
Making all this worse, Trump and his advisers routinely pocket what they like from judicial rulings and toss aside what they dislike. When the Supreme Court ordered the administration to “facilitate” the return of wrongfully deported Kilmar Abrego Garcia, Trump and fascist sidekick Stephen Miller ignored that bit. And then, simply because the court also acknowledged that “deference” to the president’s handling of foreign affairs is a factor, they preposterously declared total victory.
In a sense, Trump’s bad faith has hacked the system. Our laws do grant presidents a good deal of deference to decide whether on-the-ground conditions require invoking various emergency authorities, sometimes for good reasons. But when a president is willing to manufacture those conditions with abandon—and declare that his decreed sets of facts are not reviewable by any court—it pushes us toward the abyss. All that’s left is political mobilization—yet as we’ve now seen, Trump will seize even on that to further expand his domestic crackdown powers.
“Any system of laws will rely on some kind of assumption of good faith on the part of whoever holds power, particularly as much as the president does,” said legal commentator Leah Litman, the author of Lawless, a new book about the Supreme Court. “Trump’s level of bad faith threatens to crash the system, because our laws assume the president is responding to crises, not inventing and manufacturing them.”
It’s become a cliché to say that Trump intends L.A. as a test run for the whole country. But he has now basically confirmed this. As his tweet telegraphs, this new ruling has only emboldened him to send in the troops wherever “our Cities, and our people, need protection.” It’s not hard to divine that this will often really mean protecting his people from the manufactured threat of the people of blue America. Naturally, Trump gets to determine when this “protection” is required. And if his project prevails, no other person or entity will have the authority to say otherwise.
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