Will Trump's view of rebellion prevail in suits contesting federal deployment of National Guard?
Updated: Was there a “rebellion or danger of rebellion” in three states that justified President Donald Trump’s federalization and deployment of National Guard troops within their borders? Or were troops needed there to execute federal laws?
Those are among the issues in lawsuits challenging deployments to municipalities in California, Oregon (amended here), Illinois and Washington, D.C.
So far, three federal judges have ruled against Trump in preliminary decisions, two of which were temporarily stayed in whole or in part by the San Francisco-based 9th U.S. Circuit Court of Appeals.
District court successes in the lawsuits may not hold. “The states are bringing what I think are very strong arguments, but they do nonetheless have an uphill climb,” says Joseph Nunn, counsel for liberty and national security for the Brennan Center for Justice.
The 9th Circuit is considering appeals in the Oregon and California cases, and it is inclined “to cast a very wide net in terms of presidential authority,” says Peter Mina, founder and principal of the Mina Firm in Washington, D.C., where he handles plaintiffs-side federal sector employment matters and other civil rights litigation.
The issues are likely to “bubble up” to the U.S. Supreme Court, either through a circuit split or an emergency appeal by the administration, Mina says. And when the court rules, it is likely to embrace an analysis favoring presidential power that is similar to the one used by the 9th Circuit in a June 19 opinion temporarily allowing National Guard deployment in California, he believes.
The 9th Circuit said Trump’s use of authority was likely lawful under Section 12406(3) of Title 10 of the U.S. Code, which authorizes federalization of the National Guard when “the president is unable with the regular forces to execute the laws of the United States.”
Section 12406 also allows the federal government to call National Guard troops into federal service in cases of “rebellion or danger of rebellion” against the authority of the U.S. government.
Legal documents filed by the government say Trump is justifiably invoking Section 12406 to protect members of U.S. Immigration and Customs Enforcement and other federal interests. The troops are needed “to protect federal personnel and property, quell the mobs and restore order,” the federal government wrote in response to one of the lawsuits.
Trump has also threatened to invoke the Insurrection Act, which allows the deployment of troops to suppress an insurrection, rebellion or similar events that obstruct federal law or state civil rights law, according to an analysis by the Brennan Center for Justice.
But the states argue there was no rebellion and no failure to execute the laws, and Trump and other federal defendants are acting beyond their powers by exceeding their authority under the law.
In Washington, D.C., where the president has direct authority over the National Guard, the district is arguing that its use violates the Posse Comitatus Act, which bans the U.S. government from using armed forces for law enforcement unless authorized by Congress. The states are also making that argument.
The administration counters that rather than engaging in law enforcement, it is protecting law enforcement.
Other lawsuit arguments include:
• The National Guard orders infringe on state governors’ role as commander-in-chief of their state national guards, in violation of the 10th Amendment, which provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
• The U.S. Department of Defense violated the Administrative Procedure Act because the deployment exceeded the scope of its statutory authority and was ordered arbitrarily and capriciously.
• The Trump administration is violating the separation of powers doctrine and the take care clause, which provides that the executive must “take care that the laws be faithfully executed.” The administration is also violating the militia clauses providing that “Congress shall have power … to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”
The New York Times and Democracy Docket provided updates on the lawsuits in articles published on Oct. 10 and 11, respectively. Democracy Docket also provides case documents here.
In the suit filed by California and Gov. Gavin Newsom, U.S. District Judge Charles R. Breyer of the Northern District of California issued two orders against the Trump administration, ultimately ruling it violated the Posse Comitatus Act. Breyer barred the use of troops for “arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation or acting as informants.” The San Francisco-based 9th U.S. Circuit Court of Appeals stayed the decisions pending a hearing in orders here and here.
In the suit filed by Oregon and Portland, U.S. District Judge Karin Immergut of the District of Oregon ruled plaintiffs were likely to succed on their claim that Trump exceeded his statutory and constitutional authority and violated the 10th Amendment. Protests in Portland “were not significantly violent or disruptive,” she wrote, while issuing two temporary restraining orders blocking deployment of National Guard troops from Oregon or anywhere else. The 9th Circuit temporarily allowed the troops to stay federalized but blocked their deployment in orders here and here. Immergut extended the TRO on Wednesday.
In the suit filed by Illinois and Chicago, U.S. District Judge April M. Perry of the Northern District of Illinois temporarily blocked deployment of National Guard troops for two weeks. Last week, the Chicago-based 7th U.S. Circuit Court of Appeals allowed the Trump administration to keep the National Guard federalized pending appeal but blocked their deployment in Illinois. On Thursday, a Trump administration request to pause the TRO was rejected by the 7th Circuit, but the court did pause the portion of the district court order that barred the federalization of the National Guard troops.
In the suit filed by the District of Columbia, a hearing before a federal judge is pending.
Central to the lawsuits is how much deference courts will show to the president. “I think as a matter or law, a lot of the federal government’s positions in these lawsuits are not terribly credible,” Nunn says. The administration is presenting a completely novel interpretation of Section 12406 and making a far broader assertion of power than ever seen before, he says.
The government claims it can deploy troops anywhere, anytime, for any purpose, and the courts can’t question the decision, according to Nunn. The proposition is “profoundly un-American” and “right out of the nightmares of the founders,” he says.
But Nunn isn’t so sure that the states will prevail, even though they have strong arguments. He points to the 9th Circuit, which is being deferential to the president’s factual assertions, even when they are “detached from reality.”
Portland, Oregon, is the best example of administration overstatement, he believes.
“There is no rebellion. There is no significant unrest. Federal law enforcement are not meaningfully being prevented from enforcing the law. The city is not in flames,” he says.
“Do the courts have to take the president at his word despite all this evidence to the contrary?” he asks. If the courts answer yes, he says, “that would be profoundly harmful to the rule of law in this country because it would indicate that the words in our laws mean exactly what the president says they mean. So I think it’s very dangerous.”
Mina says the administration’s actions point to the militarization of civilian law enforcement. Without the appropriate checks and balances, this could “lead us down the path toward authoritarianism,” says Mina, who is co-chair of the National Security and Civil Liberties Committee of the ABA Section of Civil Rights and Social Justice.
Formerly deputy officer for the U.S. Department of Homeland Security’s Office for Civil Rights and Civil Liberties, Mina is a member of the Steady State, a group of former national security officials that has filed amicus briefs in two of the cases that raise concerns of authoritarianism. He left the Trump administration after accepting its deferred resignation offer.
Could a Supreme Court ruling for Trump embolden him to dispatch troops to monitor polling places? It’s possible, Mina says, that Trump would use his authority to enforce restrictive voting-rights laws or to combat what the administration sees as voter fraud.
Trump is probably counting on the Supreme Court to rule for him and “essentially set the standard for presidential power,” Mina says.
Updated Oct. 17 at 8:47 a.m. to report on the latest ruling from the Chicago-based 7th U.S. Circuit Court of Appeals.
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