Ben Weingarten writes for the Federalist about a key task for the nation’s highest court.
In the dead of night, an unelected federal judge made himself president and subordinated the duly elected commander-in-chief to a governor.
That is the effect of Senior Judge Charles Breyer’s ruling that President Trump’s federalizing of California’s National Guard in the face of the Los Angeles riots was “illegal,” and that the president must return control of the forces to Gov. Gavin Newsom.
Like several judges who ruled that Trump illegally invoked the Alien Enemies Act to pursue illegal alien terrorists for swift removal, Breyer’s ruling boils down to his view that, as a district court judge, he may substitute his wisdom for that of the president.
Trump federalized the National Guard under 10 U.S.C. § 12406. The law says that if “there is a rebellion or danger of a rebellion” against the U.S. government, or the president “is unable with regular forces to execute the laws of the United States,” he may take command of the National Guard of a state and deploy it “in such numbers as he considers necessary” to “suppress the rebellion or execute those laws.”
Nowhere does the law delegate to any one of the hundreds of district court judges the power to determine whether a rebellion is afoot or “regular forces” are insufficient to ensure law and order. Nor does the law require the president to preclear such actions with a court — whether in San Francisco, as in this case, or anywhere else.
“[T]he President has every right under the Constitution and by statute to call forth the National Guard and Marines to quell lawless violence directed against enforcement of federal law,” the administration wrote in its motion opposing California’s call for a temporary restraining order.
Executives must act vigorously in matters of national security, and they do so armed with knowledge and intelligence that judges lack. Executives are also directly accountable to the people in ways judges are not.
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Author: Mitch Kokai
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