A federal appeals court has determined that President Donald Trump “likely acted within his authority” to federalize the California National Guard during protests over immigration raids earlier this month, thereby indefinitely halting a lower court order that sought to transfer control of the guard back to the governor.
The three-judge panel did not agree with the Trump administration’s assertion that the president’s decision was entirely beyond judicial review. However, they concluded that the president likely acted lawfully by invoking a section of the U.S. Code on Armed Services, which permits the federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.”
The judges said Trump had a basis for federalizing the guard, citing acts of violence during the protests.
“The undisputed facts show that prior to the National Guard’s deployment, protesters ‘pinned down’ several federal officers and hurled ‘concrete chunks, bottles of liquid, and other objects’ at them,” the judges stated in their order. “Protesters also inflicted damage on federal buildings and caused the shutdown of at least one federal building … The federal government has a considerable interest in preventing such incidents.”
The judges said the law invoked by Trump does not require the president to obtain a governor’s consent and concluded “Governor (Gavin) Newsom had no power to veto or countermand the President’s order.”
The appeals court order puts on hold an order by a lower court judge, U.S. District Judge Charles Breyer, who called Trump’s action calling up the guard “illegal” and ordered control of the guard turned over to Newsom. The Trump administration immediately appealed that ruling and will continue to retain control of the guard as the case makes it way through the courts.
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