California Gov. Gavin Newsom just lost a major ruling in the United States Court of Appeals for the Ninth Circuit, which ruled that President Donald Trump is likely to prevail in his deployment of National Guard troops. Newsom and various Democratic politicians have insisted that Trump’s order is unlawful and that Newsom has to agree to any request for deployment. The Ninth Circuit ruled on Thursday that Newsom does not have such a veto over deployments.
The Ninth Circuit blocked the injunction of District Court Judge Charles Breyer who suggested in open court that Trump was acting like another “King George.” He then wrote an opinion that included many Democratic talking points — suggesting, for example, that Trump was creating disorder by calling out the National Guard to deal with disorder. Breyer further indicated that the violence in Los Angeles was relatively minor, despite potentially deadly attacks on law enforcement, arson, and looting.
Breyer gave the Administration little time to appeal his ruling, but it was enough for the Ninth Circuit.
Title 10 provides:
Whenever—
(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;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
10 U.S.C. § 12406.
In his decision, Judge Breyer took the extreme position that Trump could not use subsection 3 if there was any possibility of executing federal laws absent the use of the National Guard troops:
[T]he statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws. . . . The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here.
In its decision, the court rejected this premise and held that “Section 12406 does not have as a prerequisite that the President be completely precluded from executing the relevant laws of the United States in order to call members of the National Guard into federal service, nor does it suggest that activation is inappropriate so long as any continued execution of the laws is feasible.”
It concluded that “it is likely that the President lawfully exercised his statutory authority” in federalizing control of the guard. It also rejected Newsom’s claim of a veto on deployment.
Here is the opinion: 25-3727_order-for-pub
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Author: jonathanturley
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