Ninth Circuit Court of Appeals hears Trump v. Newsom over use of National Guard

SAN FRANCISCO - A panel of three appellate judges in San Francisco heard arguments by attorneys for President Trump and California Gov. Gavin Newsom on Tuesday, over whether the president has the authority to send in the National Guard to Los Angeles without the governor's consent. 

Ninth Circuit Court of Appeals Judges Mark Bennett of Honolulu, Eric Miller of Seattle, and Jennifer Sung of Portland — presided over the hearing remotely in a case simply titled Trump v. Newsom.  

WATCH; The full hearing can be heard here 

The hearing was heard in San Francisco at the James R. Browning U.S. Courthouse, though the courtroom only had spectators, no judges. 

And right off the bat, Bennett and Miller led the questions of Trump's team, asking pointed questions about the power of the president. 

"What does it mean for the president to be unable with regular forces to execute the laws?" Miller asked the Trump attorney. 

Newsom's case

Newsom briefly won a temporary restraining order last Thursday, when U.S. District Court Judge Charles Breyer said that Trump exceeded his authority in sending in 4,000 National Guard members to Los Angeles to protect ICE agents during immigration enforcement actions without getting Newsom's consent first.  

Specifically, Breyer, a President Bill Clinton appointee, ruled that Trump violated the Tenth Amendment, which defines power between the federal and state governments. The order applied only to the National Guard troops and not Marines who were also deployed to the LA protests. The judge said he would not rule on the Marines because they were not out on the streets yet.

In addition, Newsom argued that the troops who were originally deployed by Trump to protect federal buildings were actually escalating tensions and promoting civil unrest.

Title 10 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 said in his ruling that what occurred in Los Angeles does not meet the definition of a rebellion. 

While arguing before the appellate court on Tuesday, Newsom's attorney, Samuel Harbourt, said the governor doesn't have a problem giving the president "some sort of deference" for implementing federal law. 

But in this case, Harbourt argued, "there's really nothing to defer to because the president has not, and the defendants have made no attempt whatsoever to provide an argument or evidence that they even contemplated more modest measures to the extreme response in calling in the National Guard and militarizing the situation." 

He concluded by asking the panel of judges to get the National Guard out of Los Angeles, so that the troops can get back to their regular job of responding to emergencies like wildfires, in a situation that is "causing harm to our nation's broader democratic tradition of the separation of the military from civilian affairs." 

Trump's case

Trump's attorneys immediately appealed Breyer's decision to the Ninth Circuit, which meant that the National Guard has been allowed to remain in Los Angeles for all this time. 

Brett Shumate, an attorney for the federal government, argued that Trump complied with the statute by informing the general in charge of the troops of his decision and has the authority to call in the Guard. 

Shumate also argued before Breyer that the president’s decisions are not subject to judicial review. 

On Tuesday, Shumate continued to argue this point before the three judges, emphasizing what he described as a chaotic and violent scene that demands the militia.

He described how, on June 6, there was a "documented record of sustained, ongoing mob violence." He told the judges that there more than "1,000 violent protesters" outside a federal building "and it required the National Guard. They were essential to protecting that building." 

He said that this violence continued until June 14, which is why the troops must stay in LA. 

California's counter argument

Harbourt countered, by pushing back "quite forcefully" that the state and local leaders are "unwilling or unable to address the situation on the ground in Los Angeles." 

He said while serious, local police have been making at least 1,000 arrests and using state authorities to "disperse crowds as necessary." 

The judges

Bennett and Miller were appointed by Trump. Sung was appointed by then-President Joe Biden.

In an interview, George Washington University of Law professor Laura Dickinson said that a judge's political appointment doesn't necessarily forecast the conclusion of a case.

"Judges do their best job to apply the law neutrally," she said. 

What's next 

While many cases before the Ninth Circuit Court of Appeals can take months, some legal experts say that a ruling in this case could come within days. And then again, the ruling would most likely be on a temporary basis.

That's because whoever loses this ruling 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.

And then whoever loses that ruling could appeal to the Supreme Court for a final ruling. 

Both sides are also back in Breyer's federal courtroom in San Francisco on Friday, for another hearing on an order to show cause. 

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