The 9th Circuit Rejects Trump's Audacious Claim That He Can Use the National Guard However He Likes
Although the appeals court said the president probably complied with the law he invoked to justify his California deployment, it emphasized that such decisions are subject to judicial review.
Last week, a federal judge in San Francisco issued a temporary restraining order against President Donald Trump's unilateral deployment of the California National Guard, saying that decision was illegal and unconstitutional. That same day, the U.S. Court of Appeals for the 9th Circuit imposed an administrative stay on U.S. District Judge Charles Breyer's order, and on Thursday the court decided the stay should continue while the case is pending.
That ruling represents both a victory and a defeat for the Trump administration. The three-judge panel unanimously concluded that the president probably complied with the statute he cited to justify the deployment. But it also unanimously rejected Trump's bold argument that it had no business addressing that issue because his decision was "unreviewable."
On June 7, in response to protests against immigration raids in Los Angeles, Trump instructed Defense Secretary Pete Hegseth to deploy 2,000 National Guard members, describing their mission as protecting federal personnel and facilities from "violence and disorder." California's Democratic Gov. Gavin Newsom immediately objected to that deployment, which was later increased to 4,000 troops, describing it as unnecessary, inflammatory, and illegal. Two days later, Newsom filed the federal lawsuit that resulted in Breyer's order.
In his memo to Hegseth, Trump invoked his authority under 10 USC 12406. That law authorizes the president to "call into Federal service members and units of the National Guard of any State" in three circumstances: 1) when the United States "is invaded or is in danger of invasion by a foreign nation," 2) when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States," or 3) when "the President is unable with the regular forces to execute the laws of the United States."
In response to Newsom's lawsuit, the government asserted both of the latter two conditions. Breyer concluded that neither condition had been met. But according to the 9th Circuit, Breyer failed to give Trump the deference that Supreme Court precedent suggests he deserves under Section 12406.
"We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard under [Section 12406] is completely insulated from judicial review," the appeals court said in its unsigned order. "Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to [Section 12406], our review of that decision must be highly deferential."
That "statutory predecessor" was the Militia Act of 1795, which the Supreme Court applied in the 1827 case Martin v. Mott. The 1795 law authorized the president to call up the militia "whenever the United States shall be invaded, or be in imminent danger of invasion," and the case involved a New York militia member who flouted a mobilization order during the War of 1812. The Court unanimously agreed that "the authority to decide whether the exigency has arisen belongs exclusively to the President" and that "his decision is conclusive upon all other persons."
As Samuel Harbourt, California's supervising deputy solicitor general, noted during a 9th Circuit hearing on Tuesday, Martin involved two issues that are not implicated by Trump's National Guard deployment: "sensitive considerations involving foreign policy" and the military chain of command. But as the 9th Circuit saw it, subsequent decisions suggest those factors were not crucial.
"If we were considering the text of [Section 12406] alone, we might conclude that the President's determination is subject to review like certain other factual findings that are preconditions for executive action under a statute," the appeals court said. "But we are not writing on a blank slate. The history of Congress's statutory delegations of its calling forth power, and a line of cases beginning with [Martin] interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential."
California "emphasizes that Martin is nearly 200 years old, and that it is in some tension with more recent decisions about the reviewability of executive determinations—even determinations about questions such as the existence of an invasion," the 9th Circuit noted. "But Martin's continuing viability is not for us to decide. The Supreme Court has admonished that '[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.'"
In light of Martin, the 9th Circuit said, the court "must give deference to the President's factual assertions" regarding the impact of the L.A. protests on federal law enforcement. In concluding those allegations probably suffice under Section 12406, the 9th Circuit emphasized that the law "does not have as a prerequisite that the President be completely precluded from executing the relevant laws of the United States in order to call members of the National Guard into federal service." Nor does it "suggest that activation is inappropriate so long as any continued execution of the laws is feasible."
The 9th Circuit did not address Trump's contention that the L.A. protests constituted a "rebellion," which Breyer also rejected. For the purpose of deciding whether to issue a stay pending appeal, the court said, it was enough to conclude that, given the "highly deferential standard of review" applied in Martin, Trump was likely to prevail in his claim that he was "unable" to enforce federal laws "with the regular forces."
At the same time, the 9th Circuit unambiguously rejected the government's claim that Trump's compliance with Section 12406 is a "political question" beyond the purview of federal courts. "Because the political question doctrine is grounded in the constitutional separation of powers, it has traditionally been limited to constitutional cases," the court noted. "It has not been available in statutory cases. Applying it in statutory cases would 'systematically favor' the President over Congress by ignoring the limitations that the latter placed on the former's authority, threatening the very separation of powers that the doctrine is meant to protect." And since this case involves statutory interpretation, the 9th Circuit said, the political question doctrine does not apply.
The appeals court also emphasized that the deference required by Martin has limits. "Martin does not compel us to accept the federal government's position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith," it said.
The 9th Circuit added that "we do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking" the third prong of Section 12406. "The statutory context confirms that," it said. "Subsections one and two of the statute discuss unusual and extreme exigencies—invasions and rebellions—that threaten the normal operations of civil government. If we were to adopt the federal government's reading of subsection three, it would swallow subsections one and two, because any invasion or rebellion renders the President unable to exercise some federal laws."
The issue of whether Trump complied with the terms of the specific statute he chose to invoke might seem unimportant in light of the much broader powers granted by the Insurrection Act, which he so far has not invoked. But this case raises crucial questions regarding the rule of law, the separation of powers, judicial review, and federalism.
As the 9th Circuit noted, the Constitution gives Congress the primary authority to call up the militia, and the president is not free to ignore the conditions that Congress attaches to any delegation of that authority. If the president does that, the court emphasized, it is clearly the judicial branch's job to say so, contrary to the Trump administration's assertion that the remedy for a president's abuse of his statutory authority in this area is exclusively "political," meaning Congress cannot rely on the courts to enforce its will. And without judicial review to ensure the president is following the law, the National Guard, today's version of the state militia, would become nothing more than a federal appendage that the president can use at will, impinging on the powers reserved to the states under the 10th Amendment.
Although those issues have no particular partisan valence, the president's supporters have reflexively sided with him in this dispute, arguing that his role as commander in chief of the armed forces precludes judicial intervention. But that position ignores the checks and balances established by the Constitution, which assigns different functions to different branches and divides power between the states and the federal government.
Imagine how Republicans would have reacted if President Joe Biden had unilaterally deployed National Guard members during the COVID-19 pandemic, arguing that they were needed to enforce lockdowns, vaccine or mask mandates, or the federal eviction moratorium in the face of occasionally violent opposition to those policies. The Trump supporters who today argue that the president should have complete discretion to deploy the National Guard as he sees fit surely would have sung a different tune in response to a Democratic president's heavy-handed use of that power.
In that situation, Republicans would ask what specific legal authority the president was invoking and insist that he meet its requirements. Such demands would be perfectly reasonable, and so would the expectation that the courts would make sure the president was complying with the law. That vital function is not contingent on the president's political affiliation.
