Judge orders Trump to end National Guard deployment to LA

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A federal judge has ordered the National Guard to leave Los Angeles and return to the control of Gov. Gavin Newsom in a stern rebuke of the Trump administrationthe claim that he could leave troops in the city indefinitely.

The order was issued today effective Monday at noon.

“It is profoundly un-American to suggest that people peacefully exercising their fundamental right to protest pose a risk justifying the federalization of the military,” U.S. District Court Judge Charles Breyer wrote in the opinion.

The Los Angeles case is one of several challenges to Trump’s deployment of the National Guard in liberal cities, including Chicago and Portland. The The US Supreme Court is weighing a case on Trump’s call-in of troops to Chicago, which could further determine whether domestic mobilizations are constitutional.

In June, Breyer issued a separate ruling against Trump’s deployment to Los Angeles, but the 9th Circuit Court of Appeals block the entry into force of the decision and allowed the troops to remain.

“Today’s decision is abundantly clear – the federalization of the California National Guard is illegal and must end,” Newsom said in a written statement. “The president has deployed these brave men and women against their own communities by removing them from essential public safety operations. We look forward to returning all members of the National Guard to government service.”

The Trump administration is using Section 12406 of the United States Code to justify sending National Guard troops to Los Angeles in early June when aggressive immigration enforcement led to protests. The administration issued similar orders in August and again in October, each time citing the clause that allows Trump to federalize National Guard troops if “the president is unable with regular forces to execute the laws of the United States.”

In any case, the Trump administration argued that conditions in Los Angeles in early June justified sending in the National Guard. Trump mobilized 4,000 troops from the state’s National Guard in response to two days of sometimes volatile protests against federal immigration crackdowns in Southern California. Almost everyone has gone home.

Before Trump’s federalization of these troops, never in US history was referred to the law without the consent of the 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.

“It defies protocol — and common sense — to conclude that the risks posed by protests — in August, October, or even today — could not be adequately managed without recourse to the National Guard,” wrote Breyer, the brother of retired Supreme Court Justice Stephen Breyer.

There are three conditions that presidents can use to invoke Section 12406: If the country is invaded or threatened with invasion; if there is rebellion or threat of rebellion against the United States government; or if the President cannot enforce the laws of the nation with regular forces.

The Trump administration has focused on the latter, arguing that previous court rulings have found that the president need only be “significantly impeded” from enforcing the laws of the land, rather than being completely “incapable” of enforcing them, to comply with Section 12406, and arguing that the existing risk of further protests justifies the National Guard’s continued presence.

Breyer rejected that argument, saying the mere threat of protests or uprisings compromising the president’s ability to enforce the laws of the land was not enough to justify federalizing the National Guard.

“if federalization justified federalization, it would become a positive feedback loop that continually rationalized federal control over state troops,” Breyer wrote.

In briefings, the Trump administration said the federal mission was a success and that conditions in Los Angeles had improved, but said the situation still required the presence of National Guard troops.

“Their claim that ‘it remains impossible to enforce the laws … in California’ is not only unsupported, it actually borders on misrepresentation,” Breyer wrote.

Breyer also warned that the Trump administration’s justification for federalizing National Guard troops, if allowed to continue, would set a dangerous precedent.

The Trump administration “reaffirmed its position that, after initial federalization, all extensions of federalization orders are completely non-reviewable, in perpetuity,” Brier wrote.

“This is shocking. Adopting the defendants’ interpretation of section 12406 would allow the president to create a permanent police force consisting of state troops, as long as they are first legally federalized.”

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.