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A federal appeals court panel late Thursday allowed President Trump to keep the National Guard deployed in Los Angeles, for now.
The three-judge 9th U.S. Circuit Court of Appeals panel unanimously extended its pause of a judge’s order finding Trump’s deployment illegal and forcing him to return control of the troops to California Gov. Gavin Newsom (D).
“We emphasize, however, that our decision addresses only the facts before us. And although we hold that the President likely has authority to federalize the National Guard, nothing in our decision addresses the nature of the activities in which the federalized National Guard may engage,” the appeals panel wrote in its unsigned, 38-page decision.
The panel said it disagreed with the administration that Trump’s decision isn’t reviewable by the courts, but the judges acknowledged they must be “highly deferential.”
“Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority,” the opinion reads.
Trump has sent in thousands of National Guard troops to protect immigration officers in the wake of recent protests in Los Angeles, which at times have devolved into violence. The move quickly sparked a lawsuit from Newsom and the state’s attorney general.
Though the 9th Circuit’s decision marks a victory for Trump in the legal battle, it may be short-lived. U.S. District Judge Charles Breyer, who issued last week’s decision invalidating the deployment, is set to hold a hearing Friday on whether to issue an indefinite injunction.
Breyer is an appointee of former President Clinton and the brother of retired Supreme Court Justice Stephen Breyer.
In deploying the troops, Trump cited a statute that allows him to federalize the National Guard whenever there is a rebellion or when he cannot execute federal laws with regular forces.
The appeals panel on Thursday said it agreed the latter trigger was likely met, so it didn’t need to reach the question of whether there was a rebellion.
“Plaintiffs’ own submissions state that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by Defendants, those activities significantly impeded the ability of federal officers to execute the laws,” the opinion reads.
The three-judge appeals panel comprised two Trump-nominated judges, Mark Bennett and Eric Miller, and Judge Jennifer Sung, an appointee of former President Biden.
The 9th Circuit also rejected Newsom’s argument that Trump failed a statutory requirement to issue his deployment order “through” the governor. Newsom contended it established a requirement that he consent, but the appeals panel said notifying the adjutant general of the California National Guard was likely sufficient.
The panel stressed the statute “does not give governors any veto power over the President’s federalization decision.”
