The Ninth Circuit’s Flawed Decision Upholding Trump’s Federalization of the California National Guard
Yesterday, the US Court of Appeals for the Ninth Circuit issued a decision overturning a trial court ruling that had invalidated President Trump’s federalization of 4000 troops of the California National Guard. The Ninth Circuit gets several important issues right, but ends up getting the bottom line wrong.
Trump federalized the National Guard in response to protests and unrest caused by ICE deportation operations. The statute Trump relied on, 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:
1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States
All parties agree there is no “invasion” by a foreign power. District Court Judge Charles Breyer correctly ruled the very limited violence in LA was nowhere near the type or scale needed to qualify as a “rebellion,” and also that mere impediments to law enforcement don’t qualify as an “inability” to “execute the laws” with “regular forces.” Otherwise, as I pointed out in my analysis of his ruling, an “inability” to enforce the laws would exist in virtually every city at any time, since there are always many lawbreakers whom “regular forces” are unable to detect and detain. Judge Breyer also ruled, correctly, that the determination about whether the prerequisites for invoking the statute exist is not a “political question” exempt from judicial review.
Interestingly, the per curiam Ninth Circuit ruling actually endorses much of the above. Like Judge Breyer, the appellate court rejects the administration’s position that the criteria for invocation are a political question immune from judicial review. Indeed, the Ninth Circuit actually goes further than Breyer, concluding that the political questions doctrine doesn’t apply to statutory issues at all, only certain constitutional ones. I am not sure this is correct, as a general matter. But I do agree that the president does not have unconstrained authority to invoke extraordinary emergency powers purely based on his say-so.
The Ninth Circuit does not address whether there is a “rebellion” in Los Angeles, basing their ruling purely on the supposed “inability” to execute federal law with “regular forces.” On that score, they, much like Judge Breyer, recognize that this provision is only triggered by extreme situations:
[W]e do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking § 12406(3). The statutory context confirms that. Subsections one and two of the statute discuss unusual and extreme exigencies—invasions and rebellions—that threaten the normal operations of civil government. If we were to adopt the federal government’s reading of subsection three, it would swallow subsections one and two, because any invasion or rebellion renders the President unable to exercise some federal laws.
As Judge Breyer explained in his detailed opinion, there was no such “unusual and extreme exigency” in LA on June 7. ICE and other federal law enforcement agencies continued to operate – including by detaining numerous supposedly illegal migrants – despite a few violent incidents in which no o
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