Authority on deployment of the National Guard in California by the president was given approval late Thursday by a panel in the 9th U.S. Circuit Court of Appeals.
A panel of three justices ruled unanimously to indefinitely block a June 12 U.S. District Court ruling that would have transferred control of the National Guard immediately back to California Democratic Gov. Gavin Newsom.
The ruling means second-term Republican President Donald Trump can keep control of the National Guard while Newsom proceeds with a lawsuit over the legality of Trump’s use of the National Guard to handle protests in downtown Los Angeles. The suit could ultimately end up in the U.S. Supreme Court.
The panel didn’t agree with the Trump administration that federalization of the National Guard can’t be reviewed by a court.
“We disagree with defendants’ primary argument that the president’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review,” justices wrote in their opinion. “Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential.”
Section 12406 of Title 10 of the U.S. Code covers the nation’s armed forces. Trump invoked Section 12406 to deploy 4,000 National Guard members on June 7 in response to protests and riots in downtown Los Angeles. Enforcement of federal law – anyone coming to America who is not a U.S. citizen must show a visa, or travel authorization, at a port of entry – by U.S. Immigration and Customs Enforcement was at the heart of the protests.
“Affording the president that deference, we conclude that it is likely that the president lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when ‘the president is unable with the regular forces to execute the laws of the United States,'” the justices wrote.
Newsom expressed disappointment with the ruling but welcomed the justices’ rejection of Trump’s claims that he didn’t have to answer to a court about federalizing the California National Guard.
“The court rightly rejected Trump’s claim that he can do whatever he wants with the National Guard and not have to explain himself to a court,” Newsom said in a statement. “The president is not a king and is not above the law. We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens.”
The Trump administration is using National Guard members to guard federal buildings, and workers, in downtown Los Angeles. The administration is using Marines to guard a federal building and its workers near the University of California at Los Angeles, which is in a district about 14 miles from the downtown area.
