The legal battle over the Trump administration’s deployment of the National Guard in California continued in a federal appeals court on Tuesday, where a panel of judges indicated they might have only limited power to to rule against the president’s power to deploy troops.
The Ninth Circuit Court of Appeals presided over a remote hearing regarding California’s challenge to President Donald Trump‘s federalization of the state’s National Guard troops amid protests over immigration enforcement in the Los Angeles area.
The hourlong hearing took place before a three-judge appeals court panel — made up of two judges nominated by Trump and one nominated by former President Joe Biden.
Brett Shumate, representing the federal government, said the appeals court should grant the Trump administration’s request for a stay of a lower court’s order, which would have blocked Trump’s continued deployment of the troops and returned control of the California National Guard to Gov. Gavin Newsom, who did not consent to the guard’s activation.
Shumate said the “extraordinary” court order, which was put on hold by the appeals court, interferes with the president’s commander-in-chief powers and “upends the military chain of command.”
Shumate argued that Trump acted within his discretion in calling up the National Guard “based on his determination that the violent riots in Los Angeles constituted a rebellion against the authority of the United States and rendered him unable to execute federal laws.”
He continued, “Yet the district court improperly second-guessed the president’s judgment about the need to call up the guard in order to protect federal property and personnel from mob violence in Los Angeles.”
Shumate also argued that Trump has “unreviewable” powers as commander-in-chief to deploy troops as he sees fit for any reason.
Meanwhile, Samuel Harbourt — the attorney representing the state of California and Newsom — asked the appeals court to deny the federal government’s motion, calling the federalization of the National Guard an “unprecedented, unlawful executive action.”
“To be sure, Los Angeles has seen certain episodes of unrest and even violence in recent days, including violence directed at state and local law enforcement officials. The state has strongly condemned these acts, and it has responded forcefully to them,” he said, going on to argue that the federal government provided no evidence that they “even contemplated more modest measures to the extreme response of calling in the National Guard and militarizing the situation.”
Harbourt said diverting thousands of National Guardsmen for a deployment up to 60 days takes them away from “critical work” such as wildfire prevention and drug interdiction, defies state sovereignty and “would allow defendants to further escalate tensions” in Los Angeles.
When asked why the court should have the power over a president’s decision to deploy troops, Harbourt attempted to cite other cases — but the judges said those did not apply in this case. The judges seemed to indicate that if they had any ability to review the president’s move to federalize the National Guard, it would be limited.
Harbourt also argued that Congress required that a governor be consulted before the guard is deployed, but the judges seemed skeptical over the clarity of that requirement, as well.
The judges did not issue a ruling on Tuesday or give any indication on when they would decide, while acknowledging that there is another hearing set by the lower court judge, U.S. District Judge Charles Breyer, on Friday.
To send thousands of National Guardsmen to Los Angeles, Trump invoked Section 12406 of Title 10 of the U.S. Code on Armed Services, which allows a federal deployment in response to a “rebellion or danger of a rebellion against the authority of the Government of the United States.” In his order, Trump said the troops would protect federal property and federal personnel who are performing their functions.
Breyer, the lower court judge, had called Trump’s actions “illegal.”
“At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not,” Breyer said in his June 12 order granting the temporary restraining order sought by Newsom. “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.”
The order did not limit Trump’s use of the Marines, which had also been deployed to LA.
In a press conference after the district court’s order, Newsom said he was “gratified” by the ruling, saying he would return the National Guard “to what they were doing before Donald Trump commandeered them.”
In its appeal to the Ninth Circuit, administration lawyers called the district judge’s order “unprecedented” and an “extraordinary intrusion on the President’s constitutional authority as Commander in Chief.”
Some 4,000 National Guardsmen and 700 Marines were ordered to the Los Angeles area following protests over immigration raids. California leaders claim Trump inflamed the protests by sending in the military when it was not necessary.
Meanwhile, Los Angeles Mayor Karen Bass, who had instituted a curfew within downtown LA amid the protests, announced Tuesday she was lifting the measure.
“The curfew, coupled with ongoing crime prevention efforts, have been largely successful in protecting stores, restaurants, businesses and residential communities from bad actors who do not care about the immigrant community,” Bass said in a statement. “I am lifting the curfew effective today, and as we continue quickly adapting to chaos coming from Washington, and I will be prepared to reissue a curfew if needed. My priority will continue to be ensuring safety, stability and support in the Downtown neighborhoods.”
ABC News’ Alex Stone and Jack Moore contributed to this report.
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