A federal appeals court on Tuesday seemed ready to keep President Donald Trump in control of California National Guard troops after they were deployed following protests in Los Angeles over immigration raids.
Last week, a district court ordered Trump to return control of the guard to Democrat Gov. Gavin Newsom, who had opposed their deployment. U.S. District Judge Charles Breyer said Trump had deployed the Guard illegally and exceeded his authority. But the administration quickly appealed, and a three-judge appellate panel temporarily paused that order.
Tuesday's hearing was about whether the order could take effect while the case makes its way through the courts, including possibly the Supreme Court.
It's the first time the president has activated a state National Guard without the governor's permission since 1965, and the outcome of the case could have sweeping implications for Trump's power to send soldiers into other American cities. Trump announced June 7 that he was deploying the Guard to Los Angeles to protect federal property following a protest at a downtown detention center after federal immigration agents arrested dozens of immigrants without legal status across the city. Newsom said the president was only inflaming the situation and that troops were not necessary.
In a San Francisco courtroom, all three judges — two appointed by Trump in his first term and one by President Joe Biden — suggested that presidents have wide latitude under the federal law at issue and that courts should be reluctant to step in.
"If we were writing on a blank slate, I would tend to agree with you," Judge Jennifer Sung, a Biden appointee, told California's lawyer, Samuel Harbourt, before pointing to a 200-year-old Supreme Court decision that she said seemed to give presidents the broad discretion Harbourt was arguing against.
Even so, the judges did not appear to embrace arguments made by a Justice Department lawyer that courts could not even review Trump's decision.
It wasn't clear how quickly the panel would rule.
Judge Mark Bennett, a Trump appointee, opened the hearing by asking whether the courts have a role in reviewing the president's decision to call up the National Guard. Brett Shumate, an attorney for the federal government, said they did not.
"The statute says the president may call on federal service members and units of the Guard of any state in such numbers that he considers necessary," Shumate said, adding that the statute "couldn't be any more clear."
Shumate made several references to "mob violence" in describing ongoing protests in Los Angeles. But Mayor Karen Bass lifted a curfew for downtown Los Angeles Tuesday, saying acts of vandalism and violence that prompted her curfew a week ago had subsided.
"It is essential that this injunction be stayed; otherwise, lives and property will be at risk," Shumate said.
Harbourt argued that the federal government didn't inform Newsom of the decision to deploy the Guard. He said the Trump administration hasn't shown that it considered "more modest measures to the extreme response of calling in the National Guard and militarizing the situation."
Harbourt told the panel that not upholding Breyer's ruling would "defy our constitutional traditions of preserving state sovereignty, of providing judicial review for the legality of executive action, of safeguarding our cherished rights to political protest, and of keeping the military."
Breyer's order applied only to the National Guard troops and not the Marines, who were also deployed to LA.
Newsom's lawsuit accused Trump of inflaming tensions, breaching state sovereignty, and wasting resources just when Guard members need to be preparing for wildfire season. He also called the federal takeover of the state's National Guard "illegal and immoral."
Newsom said ahead of the hearing that he was confident in the rule of law.
"I'm confident that common sense will prevail here: The U.S. military belongs on the battlefield, not on American streets," Newsom said in a statement.
Breyer ruled the Trump violated the use of Title 10, which allows the president to call the National Guard into federal service when the country "is invaded," when "there is a rebellion or danger of a rebellion against the authority of the Government," or when the president is unable "to execute the laws of the United States."
Breyer, an appointee of former President Bill Clinton, said the definition of a rebellion was not met.
"The protests in Los Angeles fall far short of 'rebellion,'" he wrote. "Individuals' right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone."
The National Guard hasn't been activated without a governor's permission since 1965, when President Lyndon B. Johnson sent troops to protect a civil rights march in Alabama, according to the Brennan Center for Justice.