Appeals Court hounds California’s attorney seeking to scrap Trump’s National Guard order

A panel of appeals court judges scrutinized some of California’s core arguments in its bid to scrap President Trump’s deployment of National Guard troops in Los Angeles.

Members of the three-judge panel of the San Francisco-based US Ninth Circuit Court of Appeals heard oral arguments Tuesday over the Trump administration’s petition for a stay to halt a lower court judge’s order for the president to relinquish control of the California National Guard back to Democratic Gov. Gavin Newsom.

While judges on the panel dropped few definitive hints about which direction they were actually leaning, the bulk of their questions appeared to go against California.

“Where does the statute say that issuing it through the governor requires either the governor’s consent, requires consultation with the governor? Where in the text do you take that from?” Judge Mark Bennett, a Trump appointee, asked at one point.

The statute Trump invoked to federalize California’s National Guard earlier this month to contain rioting in Los Angeles stipulates that, “orders for these purposes shall be issued through the governors.”

California’s supervising deputy solicitor general, Samuel Harbourt, argued that language inherently means that Newsom needed to be consulted or that “at a minimum,” needed to be apprised.

“Under their view, they can just do the whole process without consulting the governor at all, and then slap his name at the top of the document,” Harbourt argued of the Trump administration’s position.

Bennett then floated the possibility that the panel may disagree with that interpretation and view the statutory phrasing “through the governors” as a “ministerial task,” while pressing whether there are other technical issues that could arise.

“It’s a very roundabout way of imposing a consultation requirement,” Judge Eric Miller, another Trump appointee, remarked at one point about the language of that statute.

The statute in question laid out three possible conditions — the risk of invasion, rebellion, or inability to execute US laws — in which a president “may call into federal service members and units of the National Guard of any State in such numbers as he considers necessary.”

At times, judges on the panel pointed to other textual examples where the language made clear that a president needed certain approval in order to chart a particular course of action.

The third Judge on the panel, Jennifer Sung, a Biden appointee, had been largely quiet through oral arguments, but all of her questions were directed at California.

“If we were writing on a blank slate, I would tend to agree with you, but the problem that I see for you is that [Martin v.] Mott seemed to be dealing with very similar phrasing,” Sung said at one point. “It seemingly rejected the exact argument that you’re making.”

Martin v. Mott was a 1827 Supreme Court case that dealt with a New York militiaman who refused to serve during the War of 1812 and ruled that a president had the ability, under a different, but somewhat similar law, to call upon state militias.

Judges brought up Martin v. Mott a few times during oral arguments and noted similarities between the language in the statute Trump invoked and the law at the center of the 1827 case.

“I think the plaintiffs have an extraordinarily dangerous interpretation of that statute,” Brett Shumate, the recently confirmed head of the Department of Justice’s Civil Division, argued.

“In their very reading of the statute, Governor Newsom could pocket veto the president’s orders, not convey them and wait for somebody to come down to Sacramento and consult with him before he issues that order,” he added.

“That’s not what the statue said. The statute says ‘through the governor,’ it doesn’t say ‘by the governor.’”

Newsom and California Attorney General Rob Bonta (D) had backed the legal challenge to scrap Trump’s federalization of the state’s National Guard earlier this month.

San Francisco US District Judge Charles Breyer, son of former Supreme Court Justice Stephen Breyer, sided with the state and allowed Newsom to retake control of about 4,000 National Guard members who had been mobilized by Trump.

The Trump administration promptly pursued a stay from the Appeals could and it temporarily blocked Breyer’s order last week so it could hear the case.

Trump’s move marks the first time a president has mobilized the National Guard to address upheaval in Los Angeles since the Rodney King riots in 1992.

It’s the first time a president has federalized a state’s National Guard since President Lyndon Johnson did so against Alabama Governor George Wallace in 1965 to safeguard civil rights marchers.