Bigly, but temporarily. Or is it temporarily-ly? Whichever term one wants to use, some may add surprisingly as well.
Wanna bet Gavin Newsom got surprised by a unanimous slapdown at the Ninth Circuit in his fight over control of the National Guard? The California governor took a brief X/Twitter victory lap after a win at the district court, but won't find much to celebrate in this rather detailed preliminary ruling by the appellate court. Newsom must have figured that the Ninth Circuit would have more sympathy for the Orval Faubus/George Wallace view of the Constitution, and that would legitimate his attempts to prevent Donald Trump from protecting federal law enforcement attempting to serve judicial warrants on illegal aliens.
To quote the famous philosopher Mad Dog Tannen: You thought wrong, dude.
In a unanimous, 38-page ruling, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the conditions in Los Angeles were sufficient for Mr. Trump to decide that he needed to take federal control of California’s National Guard and deploy it to ensure that federal immigration laws would be enforced.
A lower-court judge had concluded that the protests were not severe enough for Mr. Trump to use a rarely-triggered law to federalize the National Guard over Mr. Newsom’s objections. But the panel, which included two appointees of Mr. Trump and one of former President Joseph R. Biden Jr., disagreed with the lower court.
“Affording appropriate deference to the president’s determination, we conclude that he likely acted within his authority in federalizing the National Guard,” the court wrote, in an unsigned opinion on behalf of the entire panel.
Let's recap. This all starts with California's "sanctuary state" conceit, in which Newsom refuses to cooperate with the federal government to enforce immigration law. Los Angeles also preens itself as able to veto federal jurisdiction on immigration, as do a number of other cities across the US and a dozen or more states. Usually this results in passive non-cooperation, such as refusing detainers and enforcement of warrants, and that's bad enough but doesn't prevent federal agents from enforcing laws.
However, Newsom and Mayor Karen Bass escalated matters in Los Angeles. Bass whipped up agitators and activists to obstruct those latter efforts, which turned into violent action directed at ICE agents and federal property. Newsom refused to intercede to put an end to it, and suggested that ICE should be forced to stop enforcing law in his jurisdiction. That's when Trump invoked Title 10, Section 12406 to federalize units of California's National Guard and deploy them to protect federal agents and property from Bass' mobs on the streets of LA.
Federal judge Charles Breyer issued a TRO ordering Trump to return control of the National Guard to Newsom, ruling that (a) the situation didn't warrant Section 12406, and (b) Trump didn't direct the order to Newsom as the statute required. The three-judge panel scoffed at Breyer's presumptiveness and his overscrupulosity:
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, detailed above, 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).
Newsom et al had argued that only a complete rebellion against federal authority would justify federalizing the National Guard. The panel doesn't mention these precedents, but the federalizing of the National Guard by Eisenhower in the Little Rock desegregation case (and later in Alabama by LBJ) didn't involve total rebellions against federal authority either. The federal government exerted its authority to enforce the 14th Amendment in those situations by using the National Guard to desegregate schools.
As for the process argument, the Ninth Circuit made short shrift of that, too. The Trump administration promptly notified California's Adjutant General, who reports directly to Newsom, about the federalization of the troops. But even if that hadn't been enough, the court ruled that the federal government's authority over armed forces is not predicated on process laws:
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. ...
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 . . . .” (emphasis added)). Even with the requirement that such orders be issued “through the governor[],” id., 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.” U.S. CONST. art. I, § 8, cl. 15. 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. 25 U.S. at 30. 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.
Finally, the court returns to the obviously absurd nature of this challenge to Trump's use of Section 12406. The reality on the ground was that the agents and property of the federal government were under siege, and neither the state nor the city seemed inclined to do much about it:
Both irreparable harm and the public interest weigh in favor of Defendants, who have an uncontested interest in the protection of federal agents and property and the faithful execution of law. See Index Newspapers, 977 F.3d at 838. The undisputed facts demonstrate that before the deployment of the National Guard, protesters “pinned down” several federal officers and threw “concrete chunks, bottles of liquid, and other objects” at the officers. Protesters also damaged federal buildings and caused the closure of at least one federal building. And a federal van was attacked by protesters who smashed in the van’s windows. The federal government’s interest in preventing incidents like these is significant. See United States v. Bader, 698 F.2d 553, 555 (1st Cir. 1983) (“It is well established that the need to safeguard the normal functioning of public facilities is a ‘substantial government interest’ . . . .”); United States v. Shiel, 611 F.2d 526, 528 (4th Cir. 1979) (“The legitimacy of the government’s interest, in the abstract, of insuring the public’s compliance while in or on government property with proper directions of law enforcement officers . . . [is] apparent.”); cf. In re Neagle, 135 U.S. 1, 59 (1890)
In other words, this is a slam dunk on Newson and Bass ... at least temporarily. The hearing that produced this ruling was a challenge to the TRO/injunction issued by Breyer and stayed by the court, not a full appeal of Breyer's ruling on the merits. However, as my friend and colleague Aaron Walker writes at Twitchy, the jig is basically up:
For now, Trump will have command… unless the entire Ninth Circuit intervenes. The Ninth Circuit is the largest mid-level appellate court on the federal level. A little Googling tells us there are 29 active judges on it, and in order to handle cases more efficiently, they handle the vast majority of appeals by ‘panels’ of three judges like this, which are chosen at random on a case-by-case basis. But it is possible to move for the entire 29 judge court to get involved and that group is considerably less sympathetic to the Trump administration. Or alternatively Newsom could appeal to the United States Supreme Court, but Newsom's chances are worse, there.
But even in the Ninth Circuit as a whole, we think Trump’s chances are good. Again, we cannot stress enough how much Judge Breyer went off the reservation in the case below. Most of the time the politics of the courts—which goes beyond partisan politics—is basically ‘let the President do whatever the frak he wants when it comes to the military.’ In the past the Courts have let the military ban yarmulkes and other religious headgear, and intern Japanese Americans because the military was involved. We don't cite these examples to praise these decisions, but to point out how extreme that deference can be.
I find it unlikely that even the full Ninth Circuit would reverse this finding, especially after their three colleagues went to this length to dismantle the arguments from Newsom et al. In the first place, the reputation of the Ninth Circuit as radically out of step with the Supreme Court and the rest of the judiciary has always been somewhat overblown. Second, Trump appointed a significant number of jurists to this circuit in his first term, which has made their overall roster more balanced than before.
And finally, this dispute got settled decades ago in Arkansas and Alabama. The situation in Los Angeles was even more acute, with federal agents undeniably under assault by agitators at least morally incited by the mayor and the governor, if not quite legally meeting the threshold for criminal incitement. Had these 'leaders' followed federal law and crafted policies that allowed law enforcement to cooperate with immigration enforcement, these riots would never have taken place at all. If Newsom wants to find the villain responsible for federal troops in his largest city, he should look in the mirror rather than in a federal court.
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