The 9th Circuit Court of Appeals decided Thursday to keep Los Angeles troops in the hands of the Trump administration, while California objections filed a lawsuit in federal court, finding that the president’s power to deploy troops in U.S. cities is not a “uncensored” power.
“We disagree with the defendant’s main argument that the president’s decision to decide the federal California National Guard members is completely isolated from judicial review,” Trump-appointed Honolulu judge Mark J. Bennett wrote for the appeal panel. “Nevertheless, we were convinced that under the long precedent of interpreting the statutory predecessor…our review of the decision must be highly respected.”
Legal scholars say the decision is expected — especially because the 9th Circuit has transformed from the country’s most liberal person to one of the most “balanced” since the beginning of Trump’s first term.
“For the people, understand how much power Congress gives to the president,” said Eric Merriam, a professor of legal studies at the University of Central Florida.
“Judges for hundreds of years have great respect for the president in national security decisions, [including] Experts continue to use the military. There is no other legal field that a president or executive receives this respect. ”
The appeals panel quickly questioned both sides at a hearing Tuesday, appearing to reject the federal government’s claim that the court has no authority to review the president’s actions, while also weakening the claims that President Trump of California’s President Donald Trump has sent troops to Los Angeles to disrupt “the rebellion against the U.S. authorities.”
“The three judges seem to be skeptical of the arguments each party has made in its most extreme form,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU.
“I’m very impressed with the problem,” she continued. “I think it’s a fair question, I think it’s a tough one. I think the judge is fighting the right question.”
The ruling largely returned the issue to U.S. District Court Judge Charles R. Breyer on Thursday.
Unlike Breyer, who returned the National Guard temporary restraining order to California on June 12, the Court of Appeals largely avoided the question of whether the facts at the scene in Los Angeles constituted a “rebellion.”
Instead, the ruling focuses on the limitations of presidential power.
Bennett’s point of view directly refutes the argument of assistant Artie. General Brett Shumate at Tuesday’s hearing – Federal National Guard Force’s decision “cannot be reviewed”.
“The defendant believes that this language excludes censorship,” the judge wrote.[But Supreme Court precedent] It does not force us to accept the position of the federal government that the president can come to the Federal Police based on any evidence and that the courts will not be able to review decisions that are obviously ridiculous or malicious. ”
He also cited the 1932 Supreme Court citation in the ruling of Sterling and Constantine, writing “[t]His nature [president’s] Power must also mean that there is a permissible honest judgment of the measures taken to meet force, suppress violence and restore order. ”
Shumate told the judge that he was not aware of the case when Bennett asked him at a hearing Tuesday.
“In this case, it was a key situation, and the fact that he didn’t know it was extraordinary,” Goitein said.
Merriam agrees–to a little bit.
“It’s our nightmare in law school – it’s my nightmare as an appellate judge,” the scholar said.
But, “Attorneys representing the United States do not intend to talk about martial law in front of the 9th Circuit, in fact, it is actually a good thing.”
One thing that Thursday’s ruling didn’t touch on is whether the government violated the POSSE COMITATUS Act and served civilian law enforcement on behalf of the military, a charge raised in California’s initial complaint, but Breyer effectively filed the charge last week.
“The POSSE COMITATUS ACT claim has not been resolved yet because it was not mature in nature last Thursday,” Goitein said. “It’s mature now.”
“Even if the 9th Circuit agrees with the federal government in all respects, we can see a ruling from the District Court next week that could limit what the troops can do locally,” she said.
Meanwhile, residents of increasingly quiet Los Angeles will have to live with an increasing number of federal forces.
“[Congress] “There is no fact that rebellion is limited to a specific type of fact,” Merriam said. [Angelenos] It might be said, “This is crazy! There is no rebellion in Los Angeles at the moment,” and that’s where we are related to the law. ”
