A federal appeals court in San Francisco is about to hand President Donald Trump the legal torch he wants to burn California – and democracy – to the ground.
The torch is a decision the Ninth Circuit Court of Appeals will issue any day now, in a case whose title alone gives away the heavyweight bout that people of all legal stripes are longing for: Newsom v. Trump.
On Tuesday, the court heard arguments in the Trump administration’s emergency appeal of last week’s lower court ruling, which found that the president’s commandeering of 2,000 National Guard troops in California was an illegal abuse of power. Trump mobilized the troops to quell protests of U.S. Immigration and Customs Enforcement raids in downtown Los Angeles. The administration ordered 2,000 more troops in Los Angeles late Tuesday, even as protests cooled and Mayor Karen Bass lifted the city curfew.
Gov. Gavin Newsom, whom Trump didn’t bother to notify about the move, called the redirection of the troops to the protests in L.A. an “inflammatory escalation” made in response to a “manufactured crisis.” Newsom sued, quickly winning an order stopping the continued deployment. But the order was put on hold to allow Trump to fight his emergency appeal.
Stanley Shields, a retired judge, went to the hearing to see the action in person. As we waited in line, Shields quickly revealed which side he was supporting by wishing me a “Happy Frank Wills Day” — a reference to the guard who on the same day 53 years ago discovered the Watergate break-in — and telling me about a bumper sticker he had made that reads, “Make America a Constitutional Republic Again.” Shields said he sent one to every Democratic member of Congress, and to each clerk at the U.S. Supreme Court.
At first, Shields thought the hearing was going Newsom’s way, but then it took a dramatic turn for Trump. Samuel Harbourt, the lawyer representing California, gamely parried a flurry of questions from the judges. The court has not issued an official ruling yet, but after the sustained hammering, Shields concluded, the fight was all but decided. And the outcome, he said, is sobering.
“This decision will allow President Trump to call up the National Guard, and federalize them in any state, whether or not there was any particular thing going on, because they’re saying it’s his discretion completely,” Shields said. “If that’s the decision, that it’s his discretion completely, then there doesn’t even need to be a fabrication of a reason why — which is really scary. I think he could do that in 50 states tomorrow.”
Brett Shumate, an assistant attorney general representing the Trump administration, told the three judge panel about how on Saturday, June 7, the day the president issued his order, Los Angeles saw seven hours of “mob” violence. (He referred to the mob ten times). It was a “constant fight, nonstop, between ICE agents and a violent crowd,” he said, citing the use of Molotov cocktails, chunks of concrete being hurled, and the firing of “mortar-style fireworks.”
“There’s still ongoing violence, and an extraordinary need for the Guard in Los Angeles even today,” he told the court.
Harbourt conceded that there was indeed protester violence aimed at law enforcement officials at all levels. Thousands of state and local officers were deployed and made about 1,000 arrests, he said. Curfews were imposed, and crowds dispersed, he said.
He went on to explain how state and local law enforcement are well-trained to control crowds and contain civil unrest. “So it is a profound concern to the leaders of the state, but the state is dealing with it. Local law enforcement agencies are doing their job of dealing with it.”
“Are we in a world that’s so different from normal conditions as to justify an extreme measure like militarizing the situation and bringing in the National Guard?” Harbourt said.
The judges seemed unmoved. They had Harbourt over a barrel because of a Supreme Court decision from almost 200 years ago, a precedent that affords the president wide discretion in deploying military troops. The decision weighed heavily in Trump’s favor, the judges told Harbourt, and tied their hands.
Brandon Stracener, legal scholar at the California Constitution Center, agreed that the appeals court would likely rule in Trump’s favor. (The Center is nonpartisan but in this case wrote a brief supporting California, arguing the Constitution forbids the seizure of state assets to enforce federal policy). He also agreed the decision could set a dangerous precedent.
I asked him not only about Los Angeles but also the No Kings protests that swept the U.S. Saturday. Though they were largely peaceful, I wondered about the possibility that Trump might use a favorable appeals court ruling to stomp out future protests, no matter how non-violent. Stracener replied that Trump’s order didn’t even mention California or Los Angeles.
“It reads kind of like a blank check to do this whenever the administration thinks it’s appropriate in any state,” Stracener said. “So it's definitely capable of repetition.”
In his arguments, Newsom’s lawyer, Harbourt, raised another threat posed by Trump’s usurping of National Guard troops. The redirection moved them out of their normal duties, he said, including preventing and fighting wildfires. Trump’s move diverted one-third of the state’s National Guard troops, he said.
They’re not “on the ground, ready to respond to emergencies, especially wildfires, which is problematic as we enter the peak of wildfire season, which experts believe is likely to be especially harmful and severe this year,” Harbourt said.
He concluded by reiterating the threat the deployment poses to democracy. Not in California, specifically, but nationwide. The power grab threatens the traditional separation of military and civilian affairs, he said.
“It’s a problem because it sets a precedent for this president and future presidents to take similar actions going forward,” Harbourt said. “There’s no limit in terms of geography whatsoever. It's not limited in the number of troops that can be called up. It's not limited in the duration that those troops can be called up for. And there is no real limit imposed on the scope of the mission.”
