Appeals panel appears skeptical of DOJ’s defense of guard deployment in Los Angeles

A three-judge panel was skeptical of the Trump administration’s arguments that the president has unchecked judicial power when it comes to deploying the National Guard on the streets of Los Angeles.

The 9th U.S. Circuit Court of Appeals heard oral arguments Wednesday after a federal judge in San Francisco ruled that President Donald Trump violated a 19th century law banning the use of soldiers to enforce civil law. California’s arguments against the administration could influence other states’ struggles against deploying guards in their cities, including Oregon and Illinois.

Through the tone of the questions, it appeared that the panel doubted the Justice Department’s defense.

The administration deployed federal troops to Los Angeles for the first time after thousands of protesters took to the streets downtown to rally against its immigration policies.

The White House called the protests violent riots that overwhelmed local officials and put residents in danger. The National Guard was needed, it was argued, to protect federal assets and personnel from growing chaos.

Critics have called the deployments excessive measures by the federal government.

In tense exchanges in court Wednesday, Judge Eric Miller questioned Justice Department attorney Eric McArthur about the scale of the protests in and around Los Angeles and whether they warranted the presence of the National Guard for an extended period of time.

Miller, a Trump appointee, questioned why having a few hundred people engage in “disorderly conduct” over two days was “comparable in severity to an invasion or rebellion.”

“Because violence is used to thwart the enforcement of federal law,” McArthur responded.

“But violence is constantly used to thwart the enforcement of federal law. Isn’t it?” » asked Miller. “I mean, the FBI will arrest someone and they shoot them or try to run away, and that happens every day, right?”

McArthur argued that the protest went “far beyond the type of everyday resistance we see to federal law enforcement.”

A similar line of questioning has focused on the extent to which conditions on the ground need to change for this to become a matter amenable to judicial review. McArthur said “nothing in the law” allows the court to make that kind of decision.

The law McArthur is referring to is 10 US Code 12406, which states that when there is a “rebellion” or “invasion” and the “regular forces” are unable to execute the laws of the United States, the president has the authority to send federalized members of the National Guard.

McArthur said the court should create its own standard for when the National Guard should be released from service.

Attorney Samuel Harbourt, representing California, said the circumstances of the June protests had not been repeated.

The Trump administration, Harbourt said, has “repeatedly acknowledged that conditions on the ground have changed significantly, including the risk to federal personnel in Los Angeles.”

Harbourt also said the administration’s intention to send all federalized members of the California National Guard to Portland, Oregon, shows that no invasion or rebellion is taking place in Los Angeles.

A court ruling initially blocked the Trump administration from being able to send troops to Portland, but the 9th Circuit issued the ruling Monday. A 2-1 decision by the appeals panel determined “that it is probable that the President lawfully exercised his statutory authority.”

While the Portland judges determined that it was “likely” that Trump had the authority to deploy members of the National Guard, the judges in California were hearing arguments on the issue at hand: Does the president have the authority to deploy members of the National Guard in such circumstances?

Oregon officials fought the deployment, arguing there was no truth to Trump’s claims that an insurrection was taking place in the streets of Portland.

The lone dissenting justice, Susan P. Graber, wrote in her ruling that it was inappropriate to accept the government’s designation of Portland as a war zone.

Her colleagues’ decision “is not only absurd. It undermines fundamental constitutional principles, including sovereign states’ control over their state’s militias and the First Amendment right of the people to assemble and oppose the policies and actions of government,” she wrote.

Oregon Attorney General Dan Rayfield said he would seek a ruling from the full 9th ​​Circuit in hopes it would overturn the three-judge panel.

The Justice Department faces a similar case in Illinois, which is asking the Supreme Court to rule after the Chicago-based 7th U.S. Circuit Court of Appeals ruled against deploying Guardsmen in the state.

Solicitor General D. John Sauer, who represented the administration, insisted it was necessary for the safety of federal agents who have been “threatened and assaulted” repeatedly. He insisted that federal authorities “were forced to operate under constant threat of mob violence.”

Illinois Gov. JB Pritzker said last week on X that he would continue to defend the state against Trump’s attempts to “invade Illinois with troops.”

“Militarizing our communities against their will is not only un-American, but also leads us down a dangerous path for our democracy,” Pritzker wrote.