Democratic California Gov. Gavin Newsom’s lawsuit over President Donald Trump’s efforts to maintain order in Los Angeles likely won’t gain enthusiastic support on appeal.
Though he found sympathy from a district court judge Thursday night, Newsom picked a legal fight against the president that he is unlikely to win, legal experts who found Judge Charles Breyer’s reasons for blocking Trump’s deployment of the National Guard amid the riots unpersuasive told the Daily Caller News Foundation.
The Ninth Circuit Court of Appeals paused Breyer’s decision shortly after it was issued, letting the troops stay in the city until at least Tuesday, when the next hearing on the issue is expected. Breyer, a Clinton appointee, wrote in his 36-page ruling that Trump’s “actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”
South Texas College of Law Houston law professor Josh Blackman told the Daily Caller News Foundation the federal government usually “will receive deference” in areas of security.
“I think the court reached out to decide some novel and complex constitutional questions on an expedited basis,” Blackman told the DCNF. “These are issues that the Supreme Court never weighed in on. I am confident this ruling will not stand.”
Breyer’s reasoning on both procedural and substantive grounds was wrong, former federal prosecutor Joseph Moreno told the DCNF, saying he expects “more reasonable heads will prevail here, if not at the appellate level then at the Supreme Court.” (RELATED: LA Anti-ICE Chaos, Clashes With Police Spreading Around America)
“With respect to process, Judge Breyer effectively conceded that Governor Newsom lacked a veto power over President Trump’s decision; however, he found that Trump’s notification to Newsom was insufficient despite the two having multiple phone conversations and the order being routed to the California Adjutant General, the commander of the National Guard,” he said. “Even if you buy the argument that the process was not followed precisely, it is harmless error and certainly not the basis for declaring an entire Presidential deployment to be illegitimate.”
Trump’s decision relied on a federal statutethat allows the president to call the National Guard into federal service when there is a rebellion against U.S. authority or “danger of invasion by a foreign nation.” The statute’s terms are undefined, so Breyer “both decided what the standards meant and that Trump failed to achieve any of them,” Moreno said.
“So we now have an unelected federal judge sitting in San Francisco asserting he can second guess the military decisions of the Commander in Chief, which is the President’s most sacred duty,” Moreno continued. “In terms of both the law and the constitution expect Judge Breyer’s ridiculous decision to be overturned.”
Harvard law professor Jack Goldsmith called the “whole opinion slapdash” in a Friday conversation on his Substack.
“I was not persuaded by the judge’s second-guessing of the president,” he said. “He was very selective in his definition of rebellion. He was not deferential at all on the president’s power to enforce the laws.”
Goldsmith suggested the Supreme Court would “act more soberly” though he did not know where they would ultimately land.
While debates surrounding Trump’s authority over the National Guard continue, Trump still has other options. Hundreds of Marines have already been sent to Los Angeles, U.S. Army Maj. Gen. Scott M. Sherman said Friday, according to The New York Times.
“It is important to also note that President Trump has ample authority to flood the zone with federal personnel even if the National Guard are neutralized pending appeal,” George Washington University law professor Jonathan Turley wrote on X. “In the end, the Administration will be able to maintain a significant force on the ground to protect federal personnel and facilities.”
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