A federal appeals court has ruled President Donald Trump “likely acted within his authority” in federalizing the California National Guard amid protests over immigration raids earlier this month — indefinitely blocking a lower court order that would have returned control of the guard to the governor.
The three-judge panel disagreed with the Trump administration that president’s decision was completely unreviewable by the courts, but concluded the president likely acted lawfully by invoking a section of the U.S. Code on Armed Services that authorizes 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 demonstrate that before the deployment of the National Guard, protesters ‘pinned down’ several federal officers and threw ‘concrete chunks, bottles of liquid, and other objects’ at the officers,” the judges wrote in the order. “Protesters also damaged federal buildings and caused the closure of at least one federal building … The federal government’s interest in preventing incidents like these is significant.”
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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