The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ninth Circuit: TRO Against President's Federalizing California National Guard Was Likely Improper
The court stays the injunction pending appeal, and in the process concludes the defendants "are likely to succeed on the merits of their appeal."
From yesterday's decision by Judges Mark Bennett, Eric Miller, and Jennifer Sung in Newsom v. Trump, granting a stay of the district court's injunction pending appeal:
[U]nder longstanding precedent interpreting the statutory predecessor to 10 U.S.C. § 12406 [which authorizes the President to federalize the National Guard], our review of that decision must be highly deferential. 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."
Additionally, the Secretary of Defense's transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to "issue all orders in the name of the Governor," Cal. Mil. & Vet. Code § 163—likely satisfied the statute's procedural requirement that federalization orders be issued "through" the Governor….
The court rejected the defendants' argument that the President's decision "is not justiciable under the political question doctrine," and thus left entirely to the President (with review only through the political process). But the court concluded that "The history of Congress's statutory delegations of its calling forth power, and a line of cases beginning with Martin v. Mott (1827), interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential." The court acknowledged that this deference is not unlimited:
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. In Martin, the Court addressed the argument that "the power confided to the President is a limited power" that "can be exercised only in the cases pointed out in the statute," and the Court explained that "[w]hen the President exercises an authority confided to him by law, the presumption is that it is exercised in pursuance of law." As the Court noted in Martin, a "public officer is presumed to act in obedience to his duty" only "until the contrary is shown."
Moreover, discussing Martin, the Supreme Court has observed that "[t]he nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order," and that "[s]uch measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace." Consistent with Martin, courts may at least review the President's determination to ensure that it reflects a colorable assessment of the facts and law within a "range of honest judgment."
But it concluded that in this case, the President acted within his authority, under the statutory provision authorizing the President to federalize the Guard when "the President is unable with the regular forces to execute the laws of the United States." (The court concludes there's no need to decide whether the President could have also acted under a related provision, which allows federalizing the Guard in cases of "rebellion.")
The district court … stated:
[T]he statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws…. The statute requires that the President be "unable" to execute the laws of the United States. That did not happen here.
But as Defendants correctly argue, "Section 12406(3) cannot plausibly be read to mean that so long as some amount of execution of the laws remains possible, the statute cannot be invoked, regardless of how much execution of the laws remains thwarted or how much personal danger federal personnel face during operations," or that "so long as any quantum of federal law enforcement could be accomplished in the face of mob violence," "the President would be unable to call up the Guard to respond." Section 12406 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.
On the other hand, we do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking § 12406(3). The statutory context confirms that. 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.
Under a highly deferential standard of review, Defendants have presented facts to allow us to conclude that the President had a colorable basis for invoking § 12406(3). They presented evidence … of protesters' interference with the ability of federal officers to execute the laws, leading up to the President's federalization of the National Guard on June 7. There is evidence that the day before, protesters threw objects at ICE vehicles trying to complete a law enforcement operation, "pinned down" several FPS officers defending federal property by throwing "concrete chunks, bottles of liquid, and other objects," and used "large rolling commercial dumpsters as a battering ram" in an attempt to breach the parking garage of a federal building. Plaintiffs' own submissions state that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by Defendants, those activities significantly impeded the ability of federal officers to execute the laws.
Affording appropriate deference to the President's determination, we conclude that he likely acted within his authority in federalizing the National Guard under 10 U.S.C. § 12406(3).
And the court concluded that the § 12406 procedural requirement that the President's "[o]rders … shall be issued through the governors of the States" was also satisfied:
Defendants' actions likely met the procedural requirement because the federalization order was issued through an agent of the Governor in the Governor's name. Under California law, the Adjutant General "is chief of staff to the Governor, subordinate only to the Governor and is the commander of all state military forces." The Adjutant General's duties include "issu[ing] all orders in the name of the Governor."
Plaintiffs do not dispute that California's Adjutant General received the memoranda from the Secretary of Defense, relinquished command to the federal military accordingly, and forwarded the memoranda to Governor Newsom. Although Governor Newsom did not personally issue the order relinquishing state command, § 12406 requires that the President's order be issued through the Governor, not directly by the Governor. Nothing in § 12406 prevents the State from delegating to a subordinate, such as the Adjutant General, the Governor's authority to issue such orders.
Even if the statute contemplated strict adherence to a process that did not allow for delegation, the President's failure to issue the federalization order directly "through" the Governor of California does not limit his otherwise lawful authority to call up the National Guard.
First, the text of § 12406 does not give governors any veto power over the President's federalization decision. The omission of an express consent requirement is telling, as Congress provided governors with veto power in another section of Title 10. See 10 U.S.C. § 12301(d) ("However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.").
Similarly, Plaintiffs' argument that the text requires, "[a]t a minimum," that the Governor be "consulted about an order" is not supported by the language of § 12406. Rather, the decision to activate the National Guard under § 12406 is textually committed to the President alone. See 10 U.S.C. § 12406 ("[T]he President may call into Federal service members and units of the National Guard …."). Even with the requirement that such orders be issued "through the governor[ ]," that provision does not grant the governor any "consulting" role. It simply delineates the procedural mechanisms through which the President's orders are issued.
Second, the purpose and context of § 12406 suggest that the statute's procedural requirement does not affect the President's authority to federalize the National Guard. As discussed above, § 12406 delegates to the President part of Congress's constitutional authority to "call[ ] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." The President's power under § 12406 is similar to his authority under the statute analyzed in Martin, which described the necessity of "prompt and unhesitating obedience" to fulfill the statute's purpose. In that context, we think it unlikely that Congress would have enacted a procedural requirement giving the Governor effective veto power over the President's otherwise lawful orders.
In any event, even if Defendants failed to comply with the statute's procedural requirement, such failure would not justify the injunctive relief imposed by the district court. Assuming arguendo that Plaintiffs were likely to prevail on their claim that Defendants violated the statute's procedural requirement, the proper remedy would be injunctive relief tailored to Defendants' failure to issue the order through the Governor—not an injunction prohibiting the President from exercising his lawful authority to call up the National Guard. At most, such tailored relief would be an injunction directing the President to send the relevant memoranda directly to the Governor….
Anna O. Mohan, Brett Shumate, Christopher D. Edelman, and Sharon Swingle represent the federal government.
