President Donald Trump’s continued use of California’s National Guard to respond to protests in Los Angeles faced fresh scrutiny on Tuesday in a high-stakes showdown over the limits of his executive authority.
A three-judge panel in the 9th US Circuit Court of Appeals in San Francisco heard arguments for lawyers from both the Justice Department and California over whether the president’s deployment of the troops without the state’s approval was illegal. The court is expected to rule quickly on whether to let Trump keep using the troops for now as the case plays out.
Tuesday’s hearing marks the latest development in the ongoing fight between the US’s most-populous state and the Trump administration over the response to the protests. Trump has deployed thousands of California’s National Guard troops in response, as well as hundreds of Marines.
California and its Democratic governor, Gavin Newsom, have blasted Trump’s deployment as a “power grab” and an unnecessary intrusion on the work of local officials to police the protests. Lawyers for the state also have said it’s “terrifying” that the president said his actions can’t be second-guessed by the courts and argue that the deployment sets a dangerous precedent.
At the hearing, Justice Department lawyer Brett Shumate told the judges the law gives presidents absolute discretion, unreviewable by the courts, to determine when it’s necessary to call up National Guard to help deal with unrest or resistance to federal authority.
“The president has the discretion to decide what level of forces are necessary to counter the threat,” Shumate said. “In the president’s judgment, 2,000 national guardsman from California are necessary to execute the laws of California and the record bears that out.”
The Trump administration has maintained that the president has the power to unilaterally federalize National Guard troops when he determines there is a “rebellion” or “invasion” that necessitates military intervention. And the law permits presidents to call up the state troops when unable to enforce federal law with “regular forces.”
Tuesday’s panel was comprised of two judges appointed by Trump and one by former President Joe Biden. The court stepped in last week at the administration’s request to pause US District Judge Charles Breyer’s order declaring that Trump’s deployment without California’s consent was “illegal.”
Samuel Harbourt, a lawyer for California, said allowing the Trump administration to continue controlling the state’s National Guard troops would “defy our constitutional traditions of preserving state sovereignty.”
“Everyday that this order remains in effect, it is causing harm to our nation’s broader democratic tradition of separation of the military from civilian affairs.”
He said the Trump administration’s actions suggest that the president can “immediately reach for the most extreme possible measure on the table.”
“There needs to at least be some consideration of whether there are more modest measures before calling for the National Guard,” Harbourt said.
Shumate argued it’s necessary for the court to put a hold on Breyer’s ruling “otherwise lives and property will be at risk.” He claimed Trump’s action to avoid going directly through Newsom to federalize 2,000 California National Guard doesn’t invalidate it.
A ruling on whether to let the troops continue under Trump’s command could be swiftly appealed to the US Supreme Court by either side.
Meanwhile, Breyer has scheduled a hearing for Friday on a request for a longer-term block of Trump’s control of of the troops.
The case is Newsom v. Trump, 25-3727, US Court of Appeals for the Ninth Circuit .
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