Today in Court: The 9th Circuit Hears the National Guard Case

After listening to the Ninth Circuit argument today (in the case involving whether Donald Trump had legal authority to federalize the California National Guard and send them into Los Angeles), I’m not optimistic about California’s chances. Usually, I don’t like to try to count votes in oral argument; judges are sometimes testing out arguments on the litigants and seeing how their colleagues react. Where they end up when the opinion comes out can be a very different place from where they are during argument.

But today, I was left with the feeling that this panel will come out in Trump’s favor and that it may even be 3-0. The panel included two Trump appointees from his first term, Judge Mark Bennett and Judge Eric Miller, and a Biden appointee, Judge Jennifer Sung. The case was very capably argued for California by Sam Harbourt, but the Judges didn’t seem to be on his side at the close. The government was represented by Brett Shumate, the Assistant Attorney General for DOJ’s Civil Division.

Right off the bat, Shumate reaffirmed the government’s view that the courts lack authority to review any decisions made by the president regarding federalizing the National Guard. It’s a maximalist view of presidential power and Shumate owned it completely, saying that the court has no role to play here.

You may recall from our discussion last week that in the district court, Judge Breyer took a different, more nuanced view. He believes that before a president can exercise his unfettered discretion to federalize the Guard, there must, in fact, be a rebellion (or one of the other triggers in the statute that lets the president take this step) in progress. In Judge Breyer’s view, a president can’t pretend there’s a rebellion going on when there isn’t one, to get away with usurping a state’s police powers.

The federal government sharply disagrees. When pressed with hypotheticals, Shumate stood firm, arguing that a president is entitled to federalize the Guard, even if they provide no reasons at all. He told the judges that the president’s decision is unreviewable. It takes a certain steely nerve to look a federal judge in the eye and tell him they are an inferior branch of government, but DOJ made no effort to soften its position. No exceptions, and no reluctance about it. The government argues that if a president decides to federalize the Guard, and says one of the conditions in the statute has been met, that’s it.

There are three conditions in the statute, Title 10 USC 12406. The President can “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary” if there is an invasion/danger of invasion, a rebellion/danger of rebellion against the government of the United States, or if “the President is unable with the regular forces to execute the laws of the United States.” Here, the government is arguing that Trump used the “rebellion” and “unable with regular forces” prongs of the statute.

Judge Miller served up a hypothetical to the government where there was no violence on the streets in Los Angeles or even opposition to government action, but the president said he’d determined he didn’t have enough ICE officers to meet his deportation targets, so he had to call up the National Guard. Looking to the third prong of the statute, the Judge asked if that would qualify as "unable to execute."

DOJ responded that a president can do that.

What if he does it in every state at once, Judge Bennett asked. Entirely unreviewable, the government responded.

This would be quite an expansion of presidential power if it holds: The unitary executive theory holds that the President of the United States possesses sole authority over the Executive Branch of the federal government and has ultimate control over all executive agencies and officials. He can tell the Justice Department which cases to indict. He can remove inspectors general from their positions. He makes all the calls. Here, the administration is going further, moving beyond unitary executive to a still more maximalist view of an imperial presidency that can elude review by the judicial branch. This is more than “just” power over the executive branch. It’s an expansion of power to act in all things and it could have troubling outcomes, dangerous ones for the future of democracy, especially with the current president in office.

There was one interesting off-ramp possibility that developed during oral argument, although the judges didn’t show a lot of commitment to it. It happened during the discussion of a case called Martin v. Mott, an 1827 Supreme Court case about a president’s discretion to invoke the Militia Act of 1795. Mott is a key precedent here.

Mott was a farmer who was court martialed and fined for declining to join the Militia during the War of 1812. James Madison utilized the Militia Act to establish a fighting force to defend the country, leveraging a provision in the statute that allowed him to do so if the country was in danger of or actually being invaded. Mott didn’t think the president should get to make that call for everyone—he thought he should be able to decide for himself whether there was a risk of invasion and only show up to fight if he agreed there was one.

The Supreme Court ruled that “the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” The Court went on to clarify that there was no appeal from “the judgement of the President” in this regard and that he was the “sole and exclusive judge” of whether the condition established in the law was met. Since then, this notion of the exclusive authority of a president to make a call like this has been honored—we’ve seen the argument arise in the context of the Alien Enemies Act as well. The federal government’s argument is that Mott controls the outcome in this case.

The State of California told the panel Mott is old and not consistent with the views we have regarding the federal government interfering with the role of the state in exercising police powers. Perhaps it could be ignored; several district judges have distinguished it recently, and the case predates the Posse Comitatus Act, which prohibits the use of the military for law enforcement purposes in the domestic United States.

Judge Bennett asked the lawyer for California, if the panel agreed that there was some room for judicial review despite the Trump administration’s argument to the contrary, “how much discretion does the president have in California's view?” California responded that presidential discretion only arises after a correct factual finding that one of the three triggers in the statute for federalizing the National Guard exists. And then Judge Sung spoke up. If we were writing on a blank slate, she said, I'd tend to agree. But Mott appears to contain similar language and seems to reject the exact argument you're making, concluding Congress gave the president exclusive authority to determine whether the exigency exists.

That sounds very much like a case California is going to lose 3-0. But there’s one wrinkle—here’s the potential way out of the loss, although it won’t happen in the Ninth Circuit. Early on, Judge Miller pointed out that California’s argument that Mott should, in essence, be overruled, at least not applied in this context, was an argument the Ninth Circuit panel couldn’t accept because they are bound by precedent. But, he pointed out, it would be a “great” argument to make before the Supreme Court, which has (as we know all too well) the ability to reverse old law in the right circumstances.

The Supreme Court, of course, is where this case is headed. Perhaps they will finally find some reason to limit presidential power. Up until now, the conservative majority has frequently agreed to expand the president’s power when the balance between the three branches of the federal government is at stake. But here, the case presents an interesting conundrum because it is about states’ rights, and traditionally, conservative judges have been in favor of preserving them when the federal government overreaches. That was part of the rationale for Dobbs, the abortion case, which leaves decisions about abortion to the states. The Court will face some interesting choices when this case makes its way to them, likely quickly and on the shadow docket. Perhaps we will see Mott overruled or more likely limited in its application, and states rights will prevail, albeit in an unusual place and way.

The panel dispensed fairly easily with California’s argument that the president was obligated to act “through the governor” before federalizing the guard, noting that state law seemed to anticipate that working through the command leadership of the Guard was sufficient. At best, this would be a procedural deficit that the Trump administration could cure, but there didn’t seem to be much appetite on the panel to bite on this one.

That’s where the court ended up. They did not rule from the bench (appellate courts rarely do), but Judge Miller noted they were “cognizant” of the hearing before Judge Breyer on Friday, which suggests we can expect a very quick decision from the panel. We’ll see if they come out as the tea leaves from today’s argument seem to suggest.

We’re in this together,

Joyce