Trump-appointed judge spars with DOJ lawyer arguing judges can’t second-guess National Guard deployment
Law & Crime reports the DOJ told a three-judge panel that President Donald Trump’s federalization of militia can’t be second-guessed by the courts, not even if the president mobilizes forces from all 50 states and Washington, D.C., simultaneously.
The June 17 panel appeal follows a suit by Gov. Gavin Newsom and a ruling by Senior U.S. District Judge Charles Breyer that Trump violated the 10th Amendment of the Constitution when he assumed control of the National Guard in California.
Trump’s argument before the 9th Circuit U.S. Court of Appeals is that Breyer’s stay order “interferes with the president’s commander-in-chief powers based on an erroneous interpretation of the applicable statute” 10 U.S. Code § 12406, which says the president “may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary” when there is a foreign invasion or a danger thereof. The statute also allows the president to assign members of national guard when there is “rebellion or a danger thereof,” or when the president is unable “to execute the laws of the United States” with local forces. White House attorneys argue Breyer “improperly second-guessed” Trump’s reasoning behind stationing troops in the state when he made his decision.
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U.S. Circuit Judges Mark Bennett asked the DOJ what the limits of Trump’s discretion are and what role the White House believes the courts have in adjudicating the statute.
DOJ Assistant Attorney General Brett Shumate argued: “… [T]here’s no role for the court to play in reviewing that decision” because the statute says the president’s power is an “unreviewable discretion.”
Bennett, a Trump appointee, had follow-up questions.
“Is it your view that if the president or a future president simply invokes the statute, gives no reasons for doing it, provides no support for doing it, and there is nothing which would appear to a court to justify it, that the court still has no role at all in determining whether the president — this hypothetical future president — correctly invoked subsection 3 [of the statute], no role at all even if the president gives no reasons, and there are no facts offered by that president to support that’s president’s decision?” he asked.
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“That’s correct,” Shumate replied.
It was also Bennett who prodded the administration to clarify their answer to a question from U.S. Circuit Judge Eric Miller about whether Trump or a future president could invade California with National Guard members from all 50 states, plus D.C., if it so chooses.
“Yes, because the statute says the president may call into federal service members and units of the Guard of any state in such numbers that he considers necessary,” Shumate responded.
The hearing, which was over Breyer’s stay order rather than the greater argument over Trump’s National Guard decision, ended without an immediate decision.
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Read the full Law & Crime report at this link.
