Three states—California, Oregon, and Illinois—are currently suing the Trump administration over its National Guard deployments in separate lawsuits with mixed results. Last week, the Ninth Circuit Court of Appeals delivered a major setback to California Governor Gavin Newsom by allowing Trump to continue to deploy the National Guard units while litigation continues.
There are significant legal questions at stake in these cases, namely when and how the president can deploy the National Guard on American soil, and what courts, states, and Congress can and have done to constrain him. In another sense, what’s really at the core of these cases is whether judges can see what’s happening right in front of them.
Newsom v. Trump is extraordinarily tangled at the moment because separate portions of the case are being considered simultaneously in different federal courts. Last week’s ruling by the Ninth Circuit dealt with the lower court’s decision to issue a temporary restraining order against the Trump administration over the summer. For simplicity’s sake, we’ll focus on that initial TRO and the court decisions that followed it.
The saga began when the Trump administration sent federal immigration agents into Los Angeles earlier this year to conduct large-scale raids and arrests. Those raids drew large numbers of protesters. In response, Trump federalized the California National Guard and ordered it to protect federal immigration agents as they carried out their raids and arrests. California Governor Gavin Newsom sued the Trump administration to challenge the National Guard’s federalization and deployment.
In the lawsuit, Newsom argued that the deployment was unlawful, unconstitutional, and procedurally invalid. Judge Charles Breyer, who happens to be the younger brother of retired Justice Stephen Breyer, ruled in the governor’s favor and granted a temporary restraining order. His ruling was blunt about what had happened.
“At this early stage of the proceedings, the Court must determine whether the president followed the congressionally mandated procedure for his actions,” Breyer wrote. “He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
At issue in each case, however, is Trump’s legal authority to federalize the National Guard and use it for domestic law enforcement. The administration has pointed to language from a provision in federal law known as Section 12406, which comes from the Militia Act of 1903. On most days, each state’s National Guard is a state militia by default with the governor serving as commander-in-chief. The law in question, however, allows the president to “call [National Guard units] into federal service” under three circumstances.
One of those circumstances is if the United States is “invaded or is in danger of invasion by a foreign nation.” While the Trump administration has claimed that the “invasion” language in other laws and constitutional provisions can be triggered by the presence of undocumented immigrants, they did not rely on that argument here. Instead they pointed to the other two circumstances: if there is “a rebellion or danger of a rebellion against the authority of [the federal government],” or if the president is “unable with the regular forces to execute [federal law].”
The administration argued that the latter two conditions were met in Los Angeles (and in the other two cities, for that matter) because protesters were obstructing federal efforts to carry out mass deportations. Before that point, however, it also argued that the federal courts had no jurisdiction over Trump’s actions, citing the 1827 case Martin v. Mott.
Martin involved President James Madison’s use of the New York militia during the War of 1812. Jacob Mott, a member of the militia, refused to comply and was court-martialed after the war ended. This was not uncommon as many Federalists in New England opposed the war. In a subsequent lawsuit, Mott claimed that his court-martial was invalid because he had not disobeyed lawful orders, effectively rejecting Madison’s authority to call up and direct the militia during the war.
The Supreme Court disagreed and ruled that Madison’s actions were lawful. Justice Joseph Story wrote in broad strokes. He concluded that Congress had lawfully delegated the discretion about activating the militia to the president, and that his decision as to whether or not an emergency existed to justify it was “conclusive upon all other persons.” Story gave broad latitude to the president in these circumstances. “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts,” he wrote.
That sounds, at least on its face, like a pretty strong precedent for the administration to cite. Breyer was unconvinced. He noted that the court’s deference stemmed at least in part from its historic pattern of deferral to the president in matters of war and national security. The War of 1812 obviously counted as such; law-enforcement raids in Los Angeles plainly do not. In addition, Breyer noted, the Supreme Court had not embraced such a deferential approach to presidential decision-making in general in the two hundred years of rulings that followed Martin.
“Between the unique concerns raised by federal military intrusion into civilian affairs and the fact that federal officials are not uniquely positioned to ascertain what is happening on the ground (as compared to, say, state and local officials), the Court is not convinced that the judiciary cannot question presidential assertions about domestic activities leading to military action,” Breyer concluded.
The three-judge Ninth Circuit panel, which consisted of two Trump appointees and a Biden appointee, took a much different approach. It viewed the Martin ruling as broadly applicable to the present day. The panel noted that “some of the Martin Court’s reasoning addressed factual circumstances of that case that are not present here, particularly the Court’s consideration of the nature of a foreign invasion and concerns about militiamen disobeying orders.” Nonetheless, it concluded that “we must give a great level of deference to the President’s determination that a predicate condition exists” because of the ruling.
California asked the Ninth Circuit to review the panel’s decision in an en banc hearing, meaning that the entire appellate court would review it. (Since the Ninth Circuit is so large, it only uses a subset of eleven judges for en banc hearings.) The court declined to do so, keeping the lower court’s restraining order on ice for now. That drew a strenuous dissent from Judge Marsha Berzon and some of her colleagues, who castigated the panel’s decision.
Among Berzon’s critiques was the panel’s approach to Martin. “Martin cannot, and does not, change the meaning of a statute not in effect when Martin was decided and whose predecessor, the Militia Act of 1795, was distinct from and not considered in Martin,” she explained. “Read carefully, in fact, Martin did not address at all courts’ authority to review the President’s exercise of his delegated power to call forth the militia.” (Emphasis hers.) Armed with that deferential standard, the three-judge panel proceeded to green-light Trump’s deployment of the National Guard because of the facts on the ground.
This is a fraught exercise, to say the least, because Trump’s own arguments for the deployments often appear to be either exaggerated or even false. The president’s choice of targets also appears to hinge less on whether there is an actual emergency and more on whether he likes the city and its residents. Los Angeles and Chicago are disfavored and suffered accordingly; San Francisco, on the other hand, escaped Trump’s targeting for now because Silicon Valley billionaires called him this week and asked him not to intervene.
The panel found that events on the ground met that threshold. “There is evidence that the day before, protesters threw objects at ICE vehicles trying to complete a law enforcement operation, ‘pinned down’ several FPS officers defending federal property by throwing ‘concrete chunks, bottles of liquid, and other objects,’ and used ‘large rolling commercial dumpsters as a battering ram” in an attempt to breach the parking garage of a federal building,’” it noted when summarizing the evidence presented to it.
Breyer drew different conclusions. “While [federal officials] have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole,” he wrote. “The definition of rebellion is unmet.” The judge pointed out that while some protesters threw bottles and rocks, they were not carrying firearms and did not follow some central or organized authority that sought to overthrow the civil power.
The episodes of violence also occurred during otherwise peaceful protests. “Courts have repeatedly reaffirmed that peaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment,” Breyer observed. He rejected the notion that the collective totality of protests became a “rebellion” on such broad grounds.
On the other Section 12406 condition, that the president is “unable to execute the laws,” Breyer also found insufficient support for that reason. The Trump administration claimed it could have apprehended more people but for the protests. That was not enough, the judge concluded. “Nor does the statute allow for the federalizing of the National Guard when the president faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs,” Breyer wrote. “The statute requires that the president be ‘unable’ to execute the laws of the United States. That did not happen here.”
The panel took a far more deferential view of the matter, however, and blocked Breyer’s temporary restraining order solely on the third condition—the “unable to execute the laws” one—by concluding that one was sufficient. That decision drew more criticism from Barzon when the Ninth Circuit denied en banc review. She noted that the third condition had only been invoked once before in its century-long existence under far more urgent circumstances.
“Although Section 12406(3) has been in existence for over 100 years, the only other time it has been invoked was when President Nixon federalized the National Guard to sort and deliver mail following a strike by over a quarter of all national postal workers, an event that “threatened to bring the nation to a standstill,” she noted. In an era before emails and the internet, this would have been devastating for the national economy—and crippling for the federal government’s basic operations.
Berzon was careful to note that while historical practice was not the actual boundary of the Section 12406 power, it could be highly indicative of its scope. “The 1970 invocation confirms that the text means precisely what it says: for the President to call forth the National Guard, he must actually and significantly lack the capacity to carry out certain laws through ordinary means,” she explained.
What truly separated the opinions of Breyer and Berzon from the panel’s opinion was not just different standards of review or jurisdictional questions, but a deeper sense of this country’s history and principles. These cases are not merely about whether the president happened to comply with a few pre-conditions in a particular federal law; they are about bedrock principles in the Anglo-American legal tradition.
“The rejection of military involvement in civil law enforcement except upon the most exigent circumstances traces to the events immediately preceding the American Revolution,” she wrote. “At that time, the British government used troops to enforce laws that American colonists widely considered oppressive and so inspired deep and enduring antagonism towards military involvement in domestic law enforcement.” These events led the Framers to put strict limits on when and how the military could be used on American soil for domestic purposes.
Newsom v. Trump is unlikely to be the vehicle by which these disputes reach the Supreme Court. That fate will likely fall to the Illinois litigation since the federal district-court judge and the Seventh Circuit all sided with Illinois Governor J.B. Pritzker, which simplified matters. But the different approaches between the various judges in the California case are likely to be more illustrative of how the Supreme Court handles the matter. At its core, this is a case about determining whether the president is acting in good faith when wielding immense power. The justices’ track record on that front is not reassuring.
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