Judge Mark Bennett, who was appointed by Trump, started the hearing held via video by asking the federal government’s attorney, Brett Shumate, whether the Department of Justice’s position is that the courts have no role in reviewing the president’s decision to call the National Guard.
“No, there’s no role for the court to play in reviewing that decision,” Shumate answered.
“The statute says the president may call on federal service members and units of the Guard of any state in such numbers that he considers necessary," Shumate said, adding that “couldn’t be any more clear.”
Shumate pointed out the ongoing protests in Los Angeles and said the Guard is necessary to protect federal officers and buildings.
U.S. District Judge Charles Breyer in San Francisco ruled last week that the Guard deployment was illegal and exceeded Trump’s authority. He granted Newsom a temporary restraining order to take control of the Guard while his lawsuit proceeds. It applied only to the National Guard troops and not the Marines, who were also deployed to LA but had not been sent to the streets at the time of the ruling.
The Trump administration argued the deployment was necessary to restore order and protect federal buildings and officers.
In his lawsuit, Newsom accused the president of inflaming tensions, breaching state sovereignty and wasting resources. The governor calls the federal government's decision to take command of the state's National Guard "illegal and immoral."
At Tuesday's hearing, the appeals panel appeared skeptical of the state’s arguments and seemed inclined to stay Breyer’s order.
Newsom had filed the suit following days of unrest as demonstrators protested against federal immigration raids across the city.
Newsom said ahead of the hearing that he was confident in the rule of law and encouraged by a federal judge’s order last week that Trump return control of the National Guard to California, before that ruling was halted.
“I’m confident that common sense will prevail here: The U.S. military belongs on the battlefield, not on American streets,” Newsom said in a statement.
Breyer ruled the Trump violated the use of Title 10, which allows the president to call the National Guard into federal service when the country “is invaded,” when “there is a rebellion or danger of a rebellion against the authority of the Government,” or when the president is unable “to execute the laws of the United States.”
Breyer, an appointee of former President Bill Clinton, said in his ruling that what has been happening in Los Angeles does not meet the definition of a rebellion.
“The protests in Los Angeles fall far short of ‘rebellion,’” he wrote. “Individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone.”
The National Guard hasn’t been activated without a governor’s permission since 1965, when President Lyndon B. Johnson sent troops to protect a civil rights march in Alabama, according to the Brennan Center for Justice.
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This story has been updated to correct the spelling of the judge's last name to Bennett, not Benett.
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Associated Press writer Sophie Austin contributed from Sacramento, California.
Credit: AP
Credit: AP
Credit: AP
Credit: AP