The legal battle over Trump's use of the National Guard moves to a California courtroom
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Lawyers for President Donald Trump and California Gov. Gavin Newsom are set to face off Monday to determine whether the president violated a 147-year-old law when he deployed the National Guard to quell protests over immigration raids in Los Angeles – against the wishes of the Democratic governor.
In June, as hundreds of people gathered in Los Angeles to protest a string of immigration raids that targeted workplaces and left dozens of people detained or deported, the president federalized and deployed 4,000 National Guard members over the objection of Newsom and local officials, who said the deployment would only cause further chaos. Trump invoked a rarely used law that allows the president to federalize the National Guard during times of actual or threatened rebellion or invasion, or when regular forces can't enforce US laws.
The president's lawyers said in a court filing that the duties of the National Guard troops and a handful of Marines also dispatched were narrowly circumscribed: They were dispatched only to protect federal property and personnel, and they didn't engage in any law enforcement activities.
Newsom filed a lawsuit June 9 against Trump and Defense Secretary Pete Hegseth, saying they violated the Posse Comitatus Act and the 10th Amendment. Trump's lawyers say the act, which prevents the use of the military for enforcing laws, doesn't provide a mechanism for a civil lawsuit.
But Newsom's lawyers have argued the president illegally made an 'unprecedented power grab' – and even violated the Constitution – by overruling local authorities to send in the military.
The president and Hegseth 'have overstepped the bounds of law and are intent on going as far as they can to use the military in unprecedented, unlawful ways,' Newsom's lawyers say in a complaint.
The trial represents a crucial moment for determining how much power a US president can lawfully exercise over the military on domestic soil. During his first term, Trump had often speculated openly about the possibility of deploying the military on American soil, whether to suppress protests or combat crime. Now he's talking about deploying the National Guard to the nation's capital over recent high-profile crimes.
The trial also represents an escalation of the feud between Trump and Newsom, which saw the president threaten to have the Democratic governor arrested during the Los Angeles protests. Newsom described the comment as 'an unmistakable step toward authoritarianism.'
The judge set to preside over the bench trial, Charles R. Breyer, previously granted a temporary restraining order against the Trump administration, ruling that the president unlawfully federalized the National Guard and that the protests didn't amount to an insurrection. But just hours later, an appeals court paused his ruling, allowing the deployment to continue.
Here's more on what to know about the upcoming trial – and the three laws Newsom's team says Trump and Hegseth violated. The trial is taking place in San Francisco, presided over by Breyer, who sits on the US District Court for the Northern District of California, with proceedings scheduled from Monday to Wednesday.
At the center of the legal proceedings is the Posse Comitatus Act, which largely prevents the president from using the military as a domestic police force, according to the Brennan Center for Justice, an independent law and policy organization.
'Posse Comitatus' is a Latin term used in American and British law to describe 'a group of people who are mobilized by the sheriff to suppress lawlessness in the county,' according to the Brennan Center.
The act, signed into law by President Rutherford B. Hayes in 1878, consists of just one sentence: 'Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.'
Newsom's lawyers say the deployment of the National Guard to Los Angeles was a violation of the act since it bars 'the military from engaging in civil law enforcement unless explicitly authorized by law,' according to the complaint.
But Trump's lawyers insist the National Guard and Marines didn't engage in any civil law enforcement – and therefore didn't violate the act.
Moreover, they say the act itself doesn't provide any mechanisms for its enforcement in a private civil lawsuit.
Newsom's lawyers also argue that by overriding California officials, Trump violated the 10th Amendment of the Constitution, which governs the sharing of power between the federal government and the 50 states. The amendment says 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'
Trump and Hegseth's move to call up the National Guard against the governor's wishes 'infringes on Governor Newsom's role as Commander-in-Chief of the California National Guard and violates the State's sovereign right to control and have available its National Guard in the absence of a lawful invocation of federal power,' Newsom's complaint says.
Policing and crime control are some of the most crucial uses of state power, Newsom's lawyers say.
Additionally, Newsom's lawyers argue Trump and Hegseth violated the Administrative Procedure Act, which says a court must 'hold unlawful and set aside agency action' that is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,' that is 'contrary to constitutional right (or) power,' or that is 'in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.'
Hegseth and the Department of Defense 'lack authority to federalize members of the California National Guard without issuing such orders through Governor Newsom, who has not consented to their actions or been afforded the opportunity to consult on any deployment. Such agency actions are unauthorized, unprecedented, and not entitled to deference by this Court,' reads the complaint.
Trump's lawyers, meanwhile, have focused in their filing on a little-used law they cited to federalize the National Guard.
Section 12406(3) of the US Code says the president can federalize the National Guard of any state in three circumstances: if the US is being invaded or faces danger of invasion; if there is a rebellion or danger of rebellion; or if the president is unable 'with the regular forces to execute the laws of the United States.'
The law, however, stipulates the orders should be issued 'through the governors.' Newsom's lawyers say Trump didn't consult with the governor before issuing the order. Breyer previously pointed out Trump's memo directed Hegseth to consult the governor before federalizing the National Guard – but that he didn't.
The Los Angeles deployment was only the second time in US history that a president has used the 'exclusive authority' of this law to federalize the National Guard, according to Newsom's lawyers. The first was when President Richard Nixon called on the National Guard to deliver the mail during the 1970 Postal Service strike.
And it's the second time since 1965, when President Lyndon B. Johnson sent troops to Alabama to protect civil rights demonstrators, that a president activated a state's national guard without a request from the governor – though he used a different law to do so.
Trump's lawyers say the president was unable to enforce federal immigration law 'as well as laws forbidding interference with federal functions or assaults on federal officers and property' with 'the regular forces' – so the deployment falls within the limits of Section 12406(3).
With only 300 National Guard troops still deployed in Los Angeles, Newsom's lawyers are looking mostly for symbolic relief: a declaration the memorandum used to federalize the National Guard and Hegseth's orders were unauthorized and illegal. The remaining troops are stationed at Joint Forces Training Base – Los Alamitos, Newsom says, 'without a clear mission, direction, or a timeline for returning to their communities.'
Newsom's team is also asking for 'injunctive relief' prohibiting Hegseth and the Department of Defense from federalizing and deploying the California National Guard and military without meeting legal requirements, including the cooperation of the governor.
Finally, they ask to recoup the state of California's costs and attorneys' fees and 'such additional relief as the court deems proper and the interests of justice may require.'
Trump's lawyers indicated in a court filing they plan to call as a witness Maj. Gen. Scott M. Sherman, deputy commanding general of the National Guard. Sherman is expected to discuss the National Guard's deployment to Los Angeles and their compliance with the Posse Comitatus Act.
Newsom's lawyers also plan to call Sherman, as well as US Army official William B. Harrington to testify about the activities of Task Force 51, the command post activated to coordinate deployment of National Guard troops and Marines to Los Angeles. Ernesto Santacruz Jr. of US Immigration and Customs Enforcement is also expected to testify about the federalized National Guard's activities in support of federal law enforcement officials during immigration enforcement operations.
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