Trump Argues That He Can Take Over a State’s National Guard Whenever He Feels Like It
Federal courts have no role whatsoever in assessing President Donald Trump’s decision to take control of the California National Guard, Assistant Attorney General Brett Shumate argued at a hearing before the U.S. Court of Appeals for the 9th Circuit on Tuesday. Two Trump-appointed members of the three-judge panel, Mark Bennett and Eric Miller, seemed appropriately skeptical of that bold claim. At the same time, they did not seem inclined to lift the 9th Circuit’s stay on a temporary restraining order against Trump’s federalization of the California National Guard in response to protests against Immigration and Customs Enforcement (ICE) raids in Los Angeles.
U.S. District Judge Charles Breyer issued that order last week, agreeing with California Gov. Gavin Newsom that Trump’s unilateral National Guard deployment was illegal and unconstitutional. However the 9th Circuit ultimately comes down on that question, any decision addressing the legal merits of Newsom’s argument will amount to a rejection of the Trump administration’s alarming position that the president has the authority to deploy National Guard troops at will, even without pretending to meet statutory requirements or citing any facts to support his decision. That argument would transform the National Guard, today’s version of the state militia, into a federal force that the president can use at his discretion, without regard to constraints imposed by Congress or the 10th Amendment.
On June 7, when Trump instructed Secretary of Defense Pete Hegseth to deploy National Guard members to protect federal personnel and facilities from “violence and disorder” in California, he invoked his authority under 10 USC 12406. That law authorizes the president to “call into Federal service members and units of the National Guard of any State” in three circumstances: 1) when the United States “is invaded or is in danger of invasion by a foreign nation,” 2) when “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” or 3) when “the President is unable with the regular forces to execute the laws of the United States.”
The 9th Circuit hearing focused on Trump’s claim that the third condition had been met. Bennett asked Shumate if it was the government’s position that “the court has no role at all in reviewing what the president has done in calling forth the militia under Subsection 3.” Yes, Shumate said, that is the government’s position: “Our view is that the statute commits the decision whether to call up the forces to the president’s unreviewable discretion. So no, there’s no role for the court to play in reviewing that decision.”
Suppose a president “simply invokes the statute, gives no reasons for doing it, [and] provides no support for doing it,” Bennett said. Suppose “there are no facts offered by that president” to support that decision and “there is nothing which would appear to a court to justify it.” Would it still be true that the court “has no role at all in determining” whether the president “correctly invoked Subsection 3”?
Yes, Shumate said: “That’s correct, because if the statute is unreviewable, it’s unreviewable.”
What if the president “articulated a justification for his action that was not one of the enumerated purposes” in Section 12406, Miller wondered. Even then, Shumate replied, the answer would be the same: “If it’s unreviewable, it’s unreviewable.” While “there can be cases where discretion can be abused,” he said, “there are other checks [on] the president through the political process,” and it is “not for a court to exceed its authority” by determining whether the president complied with the terms of the statute.
In the landmark 1803 case Marbury v. Madison, Shumate conceded, the Supreme Court said “it is emphatically the duty
Article from Reason.com
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