As National Guard case moves through courts, Trump gains advantage

San Francisco Chronicle​

8 hours ago

President Donald Trump's takeover of California's National Guard to fend off immigration protesters in Los Angeles, halted briefly by a federal judge, is starting to climb up the judicial ladder, with a federal appeals court hearing scheduled Tuesday. And the higher it gets, the friendlier the territory would appear to be for Trump.
Thursday's ruling by U.S. District Judge Charles Breyer of San Francisco that the president had exceeded his authority was 'probably out of the mainstream' among current U.S. courts, said Anthony Ghiotto, a teaching professor at the University of Illinois College of Law and a former judge in the U.S. Air Force. Ghiotto said he agreed with Breyer's decision, but doubted it would survive in a U.S. Supreme Court that has shielded Trump from criminal prosecution from official acts.
It's also a court that in 2018 upheld Trump's ban on travel to the United States from a group of nations, most of them with a majority of Muslim inhabitants, said Jon Michaels, a UCLA law professor. Opponents said the ban was discriminatory, but the court majority deferred to the president's assertion that he was protecting national security — one of his main arguments in the current case, Michaels noted.
Breyer, a former Watergate prosecutor appointed to the judiciary by President Bill Clinton in 1997, ruled that Trump had exceeded his authority by taking control of the state's National Guard and sending 4,000 of its members to Los Angeles to combat protests against workplace raids by U.S. Immigration and Customs Enforcement agents.
Breyer said the president had violated a federal law requiring him to consult with Gov. Gavin Newsom before transferring the National Guard from state to federal control. And he said the evidence did not support Trump's claim that the Los Angeles protests amounted to a 'rebellion' against the U.S. government or made it extremely difficult for ICE agents to enforce the law, the grounds specified by U.S. law for federalizing the National Guard.
Just over two hours later, a panel of the 9th U.S. Circuit Court of Appeals granted the Trump administration's request to put Breyer's order on hold, allowing the National Guard to return to the streets, while the court considers the administration's appeal.
The panel, randomly selected from the court's judges, consisted of two Trump appointees, Mark Bennett and Eric Miller, and Jennifer Sung, appointed by President Joe Biden. They ordered a hearing for Tuesday and are likely to rule within a week or two.
The losing side could then ask the full appeals court, whose 29 judges include 16 appointed by Democratic presidents, for a new hearing before an 11-judge panel, also chosen at random. The final appeal would be to the Supreme Court, and if the court agrees to review the case, it may not be resolved until sometime next year.
Ghiotto predicted the Supreme Court would take up the case, regardless of the outcome in the 9th Circuit, because of Trump's invocation of national security.
'The court has shown a willingness to tackle these issues,' the Illinois law professor said. And he noted that after federal judges in New York and Washington state issued injunctions against Trump's renewed attempt to ban transgender troops from the U.S. military, the Supreme Court put those rulings on hold and allowed the ban to take effect.
'It's indicative that they'll defer to the president when it comes to federalizing the militia,' Ghiotto said, referring to the state's National Guard. 'I hope I'm wrong.'
Breyer said in his ruling that Trump had failed to present credible evidence that the Los Angeles protests were creating a danger of 'rebellion' or were making it unacceptably difficult to enforce immigration laws and protect ICE agents. But Michaels, who teaches constitutional law at UCLA, said the law generally leaves those assessments to the president.
'Members of the court are not experts in issues of security and public safety,' he said. 'I probably would trust Judge Breyer, but that's not how the statute is written. We wouldn't want the typical president to be encumbered in this fashion.'
On the other hand, said Rory Little, a law professor at UC College of the Law in San Francisco, Breyer rightly found that Trump had failed to comply with the law by not consulting with Newsom before taking over the National Guard. And he said the judge had a basis for concluding that Trump had failed to meet the law's other requirements for federal control.
'The president has to have some evidence to show a rebellion, and there was none in the record,' said Little, a former Supreme Court law clerk.
He said the case was somewhat reminiscent of the Supreme Court's 1952 ruling rejecting President Harry Truman's attempt to seize control of the nation's steel mills during the Korean War. A 6-3 majority found that neither the Constitution nor Congress authorized the takeover of private property.
Breyer, in Thursday's ruling, cited Justice Robert Jackson's concurring opinion in that case, which said that 'emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.'
While the current Supreme Court is more conservative, Little said, it is not in 'lockstep' to rule in Trump's favor, and Chief Justice John Roberts might be able to find a compromise. And if Trump was looking for a reasonable solution, Little said, 'he would withdraw the troops and keep his powder dry.'