CA is trying to keep the National Guard out of immigration action

Can President Donald Trump call the National Guard into a city even if that state’s governor says no?

This major issue has been heard in several federal courts in three states and is now before the US Supreme Court. That’s even more urgent now that Trump plans to send Department of Homeland Security officials to San Francisco tomorrow, a move Gov. Gavin Newsom said is a precursor to the president’s deployment of the National Guard. Trump said the city has a high crime rate and needs federal protection. City officials say crime is down.

“This is right out of the dictator’s playbook. Donald Trump has done this over and over again,” said the governor in a social media post. Newsom said that before Trump can call in the National Guard, he needs to sow anxiety in the streets so he can then “work it out” with federal troops.

Ahead of news of federal agents arriving in San Francisco, California Attorney General Rob Bonta sat down with CalMatters today to talk about Trump’s use of the National Guard.

“It would be dangerous and ill-advised to allow the president to do what he’s trying to do now, which is act like he’s above the law, act like he’s king, treat the National Guard like his royal guard,” he said. “He will only deploy in blue cities. He will use it to punish the enemies. He will use it to target those people who do not support him.”

Trump has already issued an executive order directing Minister of Defense Pete Hegseth to create a new “standing National Guard Rapid Response Force” to “quickly

deployment,” attorneys from the California Department of Justice wrote to the judges of the Supreme Court in legal documentation.

Federal courts are already dealing with questions about the legality of sending state troops from the National Guard to Chicago, Los Angeles and Portland — cities where attorneys general are suing the Trump administration.

California is central to the national problem

Bonta is a key player in the Blue State resistance. His team was the first to challenge Trump to take control of the state’s National Guard under a rarely used law that allows the president to do so during an invasion, domestic rebellion or when US law cannot be enforced with “regular forces” – a contested term.

California is ground zero for this new controversy. It’s where Trump mobilized 4,000 state National Guard troops in June in response to two days of sometimes violent protests against federal immigration crackdowns in the Los Angeles area.

Before Trump’s federalization of these troops in June, at no time in US history had the law been enforced without the consent of a state governor. Use of the law is extremely rare: It was used only once before June by President Richard Nixon to mobilize troops during a 1970 postal strike.

Bonta joined Oregon in suing Trump to stop him from sending the National Guard from Oregon, California and Texas to Portland, the site of sporadic protests. And California has filed legal briefs on the Illinois side with the district and appellate courts, as well as the Supreme Court.

Frustratingly for the public, there is no definitive answer in the near future. Instead, lawyers from liberal states suing the Trump administration are locked in a standoff with Justice Department lawyers defending the White House’s decisions. Each side has scored a roughly equal collection of procedural victories and defeats with no sign of resolution.

Even a ruling from the nation’s highest court — issued by the so-called shadow case — is likely to be preliminary and prompt new iterations of legal challenges as the merits of this major issue move up the courts.

Adding to the confusion, most of the legal decisions and appeals regarding the president’s authority to take over the National Guard have dealt with temporary orders or preliminary injunctions. Only one court has answered some of the central questions surrounding Trump’s powers — whether the National Guard and the military can carry out law enforcement activities and, if so, what the limits of those abilities are.

According to Bonta’s opinion and what California has argued in court, the Trump side’s rulings could mean the National Guard, controlled by the US military, could accompany IRS officials on routine audits. This could mean armed forces at polling stations on election day. Lower Court Judge sided with Californiabut the 9th Circuit Court agreed with the Trump administration to halt that ban.

This issue of law enforcement powers is not before the Supreme Court, but it may get there soon.

The federal government says the courts can’t second-guess Trump

Attorneys for the federal government have been consistent in arguing that judges can’t even review the president’s decisions to federalize the state’s National Guard troops. However, California state attorneys wrote to the Supreme Court that “every court that has considered the issue has rejected this argument.”

So far, district court judges in California, Oregon and Illinois have agreed with Bonta and his Democratic colleagues. But twice now, a panel of judges on the 9th Circuit Court of Appeals, which oversees western states, has disagreed. They said the level of protest in the streets was rising to riot and the inability of the federal government to conduct its operations.

Two sets of 9th Circuit Court of Appeals judges weighed in on the level of violence in Portland and Los Angeles outside federal immigration centers. They suggested the unrest was significant enough to hamper federal operations, blocking lower court rulings that sided with the California and Oregon lawyers. At one point, the Portland facility was closed for more than three weeks, one of the judges noted.

Some of the judges overseeing the cases doubted the credibility of the administration’s evidence. “In addition to demonstrating a potential lack of candor on the part of these witnesses, it also calls into question their ability to accurately assess the facts,” wrote Judge April M. Perry. She was appointed by Biden.

She also noted a “disturbing trend for defendants’ declarants to equate protests with riots.”

The 7th Circuit Court of Appeals largely sided with Perry in her temporary restraining order blocking Trump from sending National Guard troops to the Chicago area. The White House appealed, and it’s now before the Supreme Court.

Attorneys for the federal government wrote to the Supreme Court that Perry’s order blocking Trump from deploying the National Guard to the Chicago area “downplays or denies the continuing threat to the lives and safety of federal agents, substitutes the court’s own judgment for the president’s judgment on the need for military escalation, and gives little or no weight to the United States’ interest in enforcing federal immigration law.”

Bonta, meanwhile, is troubled by the administration’s arguments that the unrest in June could justify a new and continued deployment of the National Guard months later. “It just doesn’t make sense,” he said. His legal team has written that there should be a limit on how long the National Guard can be deployed if the violence that led to its federalization has subsided.

Bonta is ready if Trump sends troops to the Bay Area

Still, Bonta concedes that of the three cities at the focus of federal lawsuits over Trump’s ability to send the National Guard — Chicago, Los Angeles and Portland — “I would say the federal government had its strongest argument in L.A.”

But is what happened in Los Angeles a form of rebellion? Not according to Bonta.

“The rebellion is a violent effort to overthrow the government,” he said. Violence against federal buildings and immigration enforcement in Trump-targeted cities is “not good,” but it’s not overthrowing a government.

“The belittling of these very important words with high standards by the federal government is being done on purpose,” he said. The Trump administration “calls seemingly everything an emergency, rebellion or invasion,” including illegal immigration. “But it’s not that.”

Although Bonta said he was considering trying to prevent the president from using armed forces in San Francisco, technicalities in the federal court system prevented his team from prosecuting until troops arrived. Yesterday he and Newsom they said they were ready to sue if trump does that.

“It’s hard to do anything preemptively,” Bonta told CalMatters.