Democratic California Governor Gavin Newsom’s lawsuit challenging President Donald Trump’s efforts to restore order in Los Angeles is unlikely to find strong support on appeal.
While a district court judge showed some sympathy to Newsom’s arguments on Thursday night, legal experts told the Daily Caller that his challenge is unlikely to succeed. They found Judge Charles Breyer’s reasoning for blocking Trump’s deployment of the state’s National Guard during the riots unconvincing.
The Ninth Circuit Court of Appeals quickly put a hold on Breyer’s ruling, allowing federal troops to remain in Los Angeles at least until Tuesday, when the next hearing is scheduled. In his 36-page opinion, Breyer—a Clinton appointee—argued that President Trump’s “actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”
Josh Blackman, a law professor at South Texas College of Law Houston, told the Daily Caller that the federal government typically “will receive deference” in matters related to security. “I think the court reached out to decide some novel and complex constitutional questions on an expedited basis,” Blackman said. “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.”
“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 a harmless error and certainly not the basis for declaring an entire Presidential deployment to be illegitimate,” he added.
Trump’s decision relied on a federal statute that 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 described the “whole opinion slapdash” during a Friday discussion 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.”
