A silver lining in the Ninth Circuit Court decision on use of troops in Los Angeles

The ruling might prevent Trump from invoking the Insurrection Act.

(CBS News screengrab)

On June 19, the U.S. Court of Appeals for the Ninth Circuit handed President Donald Trump a victory when it ruled that he had the legal authority to deploy the National Guard in Los Angeles. Soon afterward, the president took to Truth Social proclaiming the decision a “BIG WIN.”

The court embraced a broad view of presidential power of the kind that has animated the Trump administration since it took power on Jan. 20 and a narrow view of its own authority. Neither serves the Constitution nor the country well. Worse, it construed the facts on the ground in Los Angeles in a way that, in its view, gave credence to the president’s actions.

But, inside this gray cloud, there is the hint of a silver lining.

The president has been looking for an excuse to invoke the Insurrection Act, which would give him even broader authority to turn the military loose on the American people. The Ninth Circuit decision does not give him a reason to do so.

In the Los Angeles case, the president invoked an obscure provision of the U.S. Code to justify federalizing the California National Guard without being asked to do so by California Gov. Gavin Newsom. That law says that he may do so in response to an invasion or “danger of invasion by a foreign nation;” “rebellion or danger of a rebellion against the authority of the Government of the United States”; or if the president is “unable with the regular forces to execute the laws of the United States.”

Trump claimed that “protests or acts of violence” were inhibiting “the execution of the laws,” and that they “constitute a form of rebellion against the authority of the Government of the United States.” But his June 7 directive said the purpose of sending in was only to “temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”

There is nothing in the law that the president cited when he federalized the National Guard that authorized the military to arrest or search anyone or engage in other law enforcement activities.

For that authority, the president would have to rely on the 1807 Insurrection Act. It allows the president to deploy the military domestically and to use it to assist civilian law enforcement. As the Brennan Center for Justice notes, “That might involve soldiers doing anything from enforcing a federal court order to suppressing an uprising against the government. “

The president has long been enamored of the Insurrection Act. For example, in June 2020, as protests erupted across the nation in the wake of the murder of George Floyd, he considered using it “to send active-duty troops into American cities to suppress nationwide protests against police violence.”

He has since expressed regret that he did not do so.

In the run-up to the start of his second term, advisers put together a plan for the early use of the act. An article in Just Security notes that “A lengthy policy brief prepared by former and likely future Trump administration lawyers parrots the language of the Act and argues that a migrant 'invasion' satisfies the Insurrection Act predicate, making it 'impracticable to enforce the laws of the United States.’”

So it was not surprising that on the first day of his second term, Trump turned his attention to the Insurrection Act. He declared a national emergency at the southern border and directed the secretaries of Defense and of Homeland Security to report on border conditions within 90 days.

That report, he said, should include “any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”

Whether that report has been submitted and what it says have not been made public.

On June 8, the president was asked by reporters whether he was considering invoking the Insurrection Act. He replied cryptically, "It depends on whether or not there's an insurrection." Two days later, Trump again said, “If there’s an insurrection, I would certainly invoke it. We’ll see … If we didn’t get involved right now Los Angeles would be burning.”

It seems like the clock is ticking until the moment when the president decides that the time is ripe to use the Insurrection Act. By recognizing his authority under the Title 10 of the US Code, the Ninth Circuit might have forestalled that moment.

However, Trump critics called its decision “wrong” and said that it “gives far too much deference to the executive.”

I agree that, even as the court insisted that the president’s decision to send in troops was subject to judicial review, it strained to justify its own “highly deferential” posture. In a strange sleight of hand, the Ninth Circuit judges said, “We see no reason that Congress would have intended to receive significant deference when he (uses the military to respond to an invasion by a foreign nation)” but not when he uses the military to respond to domestic disturbances.

It doesn’t take a degree in logic to imagine that Congress would have thought differently about the domestic situation where the use of the military would be highly unusual than the realm of foreign affairs, where it is more usual. But the judges were not convinced by that logic.

As they put it, Supreme Court precedent establishes that “ ‘there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order.’ ” However, the Ninth Circuit did say that courts can intervene where there was no evidence to support the president’s claims or when a decision “was obviously absurd or made in bad faith.”

Of course, that is exactly what Newsom and Los Angeles Mayor Karen Bass said after the president sent in the National Guard. The court was again unconvinced.

It found that “under a highly deferential standard of review, defendants have presented facts to allow us to conclude that the president had a colorable basis” for doing what he did. The court said that “protesters threw objects at ICE vehicles trying to complete a law enforcement operation, ‘pinned down’ several FPS officers defending federal property ... and used ‘large rolling commercial dumpsters as a battering ram’ in an attempt to breach the parking garage of a federal building."

None of those things signal invasion, rebellion, or a breakdown of law and order. But in the court’s view, that was a decision for the president to make.

That the president likes deference and is pleased when he receives it comes through in his Truth Social Post. “This,” he wrote, “is a Great Decision for our Country, and we will continue to protect and defend Law abiding Americans. Congratulations to the Ninth Circuit, America is proud of you tonight!”

Even as he celebrated, however, the president could not resist taking a swipe at Newsom. “The Judges obviously realized that Gavin Newscum is incompetent and ill prepared.” And Trump signaled that he has more on his mind than his ongoing beef with the governor.

“All over the United States,” he added, “if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done.” Americans should be prepared; in the not-too-distant future, the National Guard might be coming to your neighborhood.

For now, at least, the Ninth Circuit might have kept him from reaching for the Insurrection Act, a far more potent and dangerous tool in his arsenal. In the battle to preserve American democracy, we must take silver linings wherever we can find them.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

---