The Ninth Circuit & The National Guard

Late last night, the Ninth Circuit entered its decision in the case involving whether Donald Trump’s federalization of the National Guard was lawful. It went largely as we thought it would after the oral argument last week, a 3-0 opinion in Trump’s favor.

Never one to show restraint, within the hour, Trump took to Truth Social to congratulate the Ninth Circuit. “America is proud of you tonight,” he wrote, which was probably enough to make all three of the judges ill. He called it a “big win” and suggested he’d do it elsewhere, too, a “great decision” that meant he could “continue to protect and defend Law abiding Americans” if state and local police “were unable…to get the job done.”

Except that’s not exactly what the opinion said. The Ninth Circuit issued an emergency stay of Judge Breyer’s order, the order that returned control of the California National Guard to Governor Newsom. The basis for their decision was more limited than the government’s broad claims of presidential power. They focused on the likelihood that Trump would prevail on his claim that he could use the third prong of 10 U.S.C. § 12406 to federalize the National Guard. That provision isn’t about a rebellion on the streets that state and local officials can’t quell. It “authorizes federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States.’” So the result is the one the administration sought, but it’s not the all out decree of greater power that they sought.

Although this is a win for Trump, the panel disagreed with him on a key issue. Trump argued the courts have no ability to review his decision about whether to federalize the Guard. The panel wrote, “We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review.” They ruled in his favor, they explained, because they were “persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential.” But they didn’t remove the judicial branch from the chessboard, as Trump had wanted them to do. Instead, they noted that under the caselaw, “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.’” That language would seem to be a warning to the president not to overstep. But based on his social media post, it went unheard.

The panel was not impressed by California’s argument that Trump had to seek Governor Newsom’s permission, or at least advise him of the decision, before federalizing the Guard. “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,’…likely satisfied the statute’s procedural requirement that federalization orders be issued ‘through’ the Governor.” They concluded that even if bypassing the governor was a procedural violation, it would not have “justif[ied] the scope of relief provided by the district court’s TRO.”

As of now, the California National Guard troops Trump federalized remain under his control pending the appeal in this case. And Judge Breyer has a hearing scheduled for later in the day on a preliminary injunction request that could reach additional issues like Trump’s use of the Marines and the Posse Comitatus Act, so expect more on this one in the coming days.

We’re in this together,

Joyce

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