Ninth Circuit: TRO Against President’s Federalizing California National Guard Was Likely Improper
From yesterday’s decision by Judges Mark Bennett, Eric Miller, and Jennifer Sung in Newsom v. Trump, granting a stay of the district court’s injunction pending appeal:
[U]nder longstanding precedent interpreting the statutory predecessor to 10 U.S.C. § 12406 [which authorizes the President to federalize the National Guard], our review of that decision must be highly deferential. Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.”
Additionally, 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,” Cal. Mil. & Vet. Code § 163—likely satisfied the statute’s procedural requirement that federalization orders be issued “through” the Governor….
The court rejected the defendants’ argument that the President’s decision “is not justiciable under the political question doctrine,” and thus left entirely to the President (with review only through the political process). But the court concluded that “The history of Congress’s statutory delegations of its calling forth power, and a line of cases beginning with Martin v. Mott (1827), interpreting those delegations, strongly suggest that our review of the President’s determinations in this context is especially deferential.” The court acknowledged that this deference is not unlimited:
Martin 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. In Martin, the Court addressed the argument that “the power confided to the President is a limited power” that “can be exercised only in the cases pointed out in the statute,” and the Court explained that “[w]hen the President exercises an authority confided to him by law, the presumption is that it is exercised in pursuance of law.” As the Court noted in Martin, a “public officer is presumed to act in obedience to his duty” only “until the contrary is shown.”
Moreover, discussing Martin, the Supreme Court has observed that “[t]he nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order,” and that “[s]uch measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace.” Consistent with Martin, courts may at least review t
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
