A federal appeals court late Thursday cleared the way for President Donald Trump to keep using the National Guard to respond to immigration protests in Los Angeles, declaring that a judge in San Francisco had erred last week when he ordered Trump to return control of the troops to Gov. Gavin Newsom of California.
In a unanimous, 38-page ruling, a three-judge panel of the 9th U.S. Circuit Court of Appeals held that the conditions in Los Angeles were sufficient for 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 Trump to use a rarely triggered law to federalize the National Guard over Newsom’s objections. But the panel, which included two appointees of Trump and one of President Joe Biden, 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.
The ruling was not a surprise. During a 65-minute hearing Tuesday, the panel’s questions and statements had telegraphed that all three judges — Mark J. Bennett, Eric D. Miller and Jennifer Sung — were inclined to let Trump keep controlling the Guard for now, while litigation continues to play out over California’s challenge to his move.
But the ruling also raised a potential hurdle for the next step. The U.S. District Court judge, Charles Breyer, was set to hear arguments Friday over a state request that he restrict what Trump can do with the 4,000 National Guard troops or 700 active-duty Marines his administration has deployed into Los Angeles.
But Breyer put those arguments off in a brief hearing. He said that he was not sure whether he had jurisdiction over the case anymore, or whether a technical step taken by the appeals court meant that the case was still pending before that court. He requested briefs from both sides by Monday on that question.
After the appeals court’s ruling Thursday, Trump praised the decision, saying in a social media post that it supported his argument for using the National Guard “all over the United States” if local law enforcement can’t “get the job done.”
Newsom, in a response Thursday, focused on how the appeals court had rejected the Trump administration’s argument that a president’s decision to federalize the National Guard could not be reviewed by a judge.
“The president is not a king and is not above the law,” Newsom said in a statement. “We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens.”
The Trump administration had urged the appeals court to find that the judiciary could not review Trump’s decision to take control of a state’s National Guard under the statute he invoked, which sets conditions such as if there is a rebellion against governmental authority that impedes the enforcement of federal law.
The appeals court declined to go that far.
Supreme Court precedent “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,” the appeals court wrote.
But, the judges said, the violent actions of some protesters in Los Angeles had hindered immigration enforcement, and that was sufficient for the judiciary to defer to Trump’s decision to invoke the call-up statute.
The appeals court also rejected the state’s contention that the call-up order was illegal because Pete Hegseth, the defense secretary, sent the directive to a general in charge of the National Guard, even though the statute says any such edict must go “through” the governor. The court said the general was Newsom’s agent, and that was good enough.
“Even if there were a procedural violation, that would not justify the scope of relief provided by the district court’s” order stripping Trump of control of the Guard, the ruling added.
Breyer’s temporary restraining order concerned only the National Guard and whether it was lawful for Trump to mobilize them under federal control. If he determines that he still has jurisdiction over the case, Breyer may soon address a state request to limit troops under federal control to guarding federal buildings, and to bar them from accompanying Immigration and Customs Enforcement agents on the workplace raids that sparked the protests.
That request centers on a 19th-century law, the Posse Comitatus Act, that generally makes it illegal to use the military for domestic law enforcement. The Trump administration has argued that the troops are not themselves performing law enforcement tasks, but rather are protecting civilian agents who are trying to arrest migrants living in the country illegally.
Hegseth suggested that he might not obey a ruling from the lower court, telling senators on the Armed Services Committee on Wednesday that he doesn’t “believe district courts should be setting national security policy.”
Conditions in Los Angeles calmed significantly over the past week, and Mayor Karen Bass of Los Angeles announced Tuesday that she was ending the downtown curfew, a week after it had first been imposed. She said local law enforcement efforts have been “largely successful” at reimposing order.
California officials have said from the beginning that local and state police could handle the protesters, and that Trump’s decision to send in federal troops only inflamed matters. But speaking with reporters outside the White House on Wednesday, Trump said he felt empowered to send troops anywhere violent protests erupt.
“We did a great job. We quelled that thing,” the president said of the demonstrations in Los Angeles. “And the fact that we are even there thinking about going in, they won’t bother with it anymore. They’ll go someplace else. But we’ll be there, too. We’ll be wherever they go.”
This article originally appeared in The New York Times.
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