DOJ says Trump's power to deploy National Guard in LA is 'absolute' in appeals court hearing

SAN FRANCISCO -- A panel of federal judges appeared sympathetic to the Trump administration's arguments in a Tuesday court hearing about the President's deployment of California National Guard troops without first notifying Gov. Gavin Newsom.

In a high stakes virtual hearing in the 9th U.S. Circuit Court of Appeals, the Department of Justice argued that President Donald Trump lawfully exercised his executive power when he sent soldiers to help protect federal officers and buildings in Los Angeles protests over immigration enforcement.

Last Thursday, San Francisco U.S. District Judge Charles Breyer sided with California in a temporary order that would have returned control of the National Guard back to Newsom. Hours later, the appellate judges temporarily blocked Breyer's ruling ahead of their Tuesday hearing.

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The lawsuit was filed last Monday after President Trump issued a Saturday memo to the Department of Defense ordering "at least" 2,000 National Guard members for 60 days minimum.

Brett Shumate, a U.S. attorney representing Trump, said Breyer's order interferes with the commander-in-chief's executive power.

"It upends the military chain of command. It gives state governors veto power over the president's military orders," he said. "Courts don't just defer to the president's judgment - they don't review the president's judgment."

The panel of three judges - including two Trump appointees - pushed back on the DOJ's assertion, asking the Trump administration hypothetical questions about how far this lack of judicial review could go.

"If a hypothetical future president made the decision to call up in response the militia of every state and the District of Columbia, so 51 militia, would it also be your view that that decision by this hypothetical future president would be entirely unreviewable?" Judge Mark Bennett, a 2018 Trump appointee, asked.

"Yes, because the statute says the president may call into federal service members and units of the guard of any state in such numbers that he considers necessary," Shumate responded.

Sam Harbourt with the California Department of Justice argued Trump's deployment was "extreme" and defies precedent.

"Every day that this order remains in effect, it is causing harm to our nation's broader democratic tradition of separation of the military from civilian affairs," he said.

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Additionally, California argued the president violated the law by not directly contacting Newsom about his deployment. The statute in question allows federal use of state National Guard troops under certain circumstances and that orders doing so shall be issued "through the governors" of such states. Judges appeared skeptical of this point.

"Where does the statute say that issuing it 'through the governor' requires either the governor's consent or requires consultation?" Bennett asked Harbourt.

"We take it from the plain meaning of through the governor," Harbourt responded. "We think at a minimum, that means that the governor needs to be informed of it and given the chance to issue it."

Additionally, the state said Trump's actions are harming California, since those National Guard members would otherwise be working on wildfire prevention efforts as the state heads into peak wildfire season - a point Newsom made in an earlier statement Tuesday.

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"President Trump's illegal militarization of Los Angeles is sidelining crucial firefighting and prevention resources," the governor said. "It's time to end the chaos and get California's National Guard back to this important work."

The judges did not signal how soon they may issue a decision.

Constitutional law professor Rory Little of UC Law San Francisco said the panel's questions during Tuesday's hearings were telling.

"Honestly, I'm not sure the court is receptive to the California position. It sounded to me like this could be a reversal of the district court. This could be affirming of the Trump administration's position, at least at this preliminary stage," he said.

Little noted that all action in the courts so far has been preliminary. If the appellate court decides to permanently reverse Judge Breyer's initial temporary restraining order, the National Guard would remain in Trump's control for at least 60 days.

"If California wins today, that case will go up to the Supreme Court," he said. "I think if California loses today, it'll still go to the Supreme Court."