The Justice Department on Wednesday argued that there was no legal basis to block federal troops from accompanying immigration agents on raids in Los Angeles, portraying the state of California’s request for such a judicial order as baseless and an attempt to restrict President Trump’s power.
In a 29-page brief, the department maintained that neither the state government nor federal courts had a right to second-guess Mr. Trump’s judgment that federal military reinforcements were necessary to protect federal immigration agents from protesters in the city.
“That is precisely the type of sensitive judgment that is committed to the president’s discretion by law, and to which courts owe the highest deference,” the Justice Department wrote. “The statute empowers the president to determine what forces ‘he considers necessary’ to ‘suppress’ a ‘rebellion’ or to ‘execute’ federal ‘laws’ — not the governor, and not a federal court.”
The filing came ahead of a hearing scheduled for Thursday afternoon in Federal District Court in San Francisco. Judge Charles S. Breyer, a 1997 Clinton appointee, is overseeing the legal challenge.
The state of California and its governor, Gavin Newsom, filed a lawsuit on Monday night challenging the legality of Mr. Trump’s move, which included taking control of up to 4,000 California National Guard troops and sending in 700 Marines. On Tuesday, the Democratic-controlled state requested a temporary restraining order that would limit both types of troops under federal control to guarding federal buildings, with no other law enforcement activity.
The state cited, in part, a 19th-century law, the Posse Comitatus Act, that generally makes it illegal to use federal troops for law enforcement on domestic soil unless the president invokes the little-used Insurrection Act. But in its brief, the Justice Department argued that the state was mischaracterizing Mr. Trump’s order, which included instructions to use the forces to protect federal agents enforcing immigration law.
“Neither the National Guard nor the Marines are engaged in law enforcement,” the department argued. “Rather, they are protecting law enforcement, consistent with longstanding practice and the inherent protective power to provide for the safety of federal property and personnel.”
Among other things, it cited Office of Legal Counsel memos from the Vietnam War era, written by the future chief justice of the United States, William Rehnquist, that said presidents had inherent power to use the military to protect federal functions in Washington and the Pentagon from antiwar protesters.
The Trump administration devoted a large section of its brief to recounting a version of the events that led to Mr. Trump’s order after two days of protests against Immigration and Customs Enforcement raids at workplaces in Los Angeles. It also contained vituperative language, such as characterizing Mr. Newsom’s lawsuit as “a crass political stunt endangering American lives.”
And in a sign of the haste with which the Justice Department drafted the filing, a page labeled “TABLE OF CONTENTS” is otherwise empty, while one labeled “TABLE OF AUTHORITIES” — where lawyers are supposed to list the court precedents cited in their brief — there is only the word “[INSERT]” highlighted in yellow.
The state has also argued that orders by Pete Hegseth, the secretary of defense, taking federal control of units of the California National Guard were illegal because Mr. Hegseth sent them directly to a general in charge of the guard and bypassed Mr. Newsom. The statute Mr. Trump invoked to call up the troops to federal service says all such orders should go through a state’s governor.
The federal brief portrayed thatargument by the state as meritless, saying that the Trump administration told Mr. Newsom what it intended to do. It also said that Mr. Hegseth’s memo to the general bore the words “THROUGH: THE GOVERNOR OF CALIFORNIA” even if it did not go to Mr. Newsom. It rejected the idea that Mr. Newsom himself had to convey the requested order, effectively giving him veto power over such a call-up.
Charlie Savage writes about national security and legal policy for The Times.
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