California Urges Court to Answer How Long Trump Can Keep National Guard in LA

The legal battle over President Donald Trump’s decision to dispatch armed troops to Los Angeles continued Monday, with California asking a federal court to consider how long National Guard members can stay on the ground and whether the deployment violates a 147-year-old law that bars using the military against civilians.

In dueling court filings, the two sides took opposite positions on what power U.S. District Judge Charles Breyer has to weigh in on the case, given the ruling on Thursday by a three-judge panel at the 9th Circuit Court of Appeals. That ruling halted Breyer’s earlier temporary restraining order, which directed Trump to hand back control of the California National Guard troops to Gov. Gavin Newsom.

The unanimous appeals court ruling means that, for now, the troops remain in L.A. and under the control of Trump.

California is arguing that the district court has jurisdiction to weigh in on questions not addressed by the appeals court, and is asking Breyer to take arguments on those issues and consider issuing a preliminary injunction in July. The Trump brief argues that the lower court has no jurisdiction over the state’s claims, saying the 9th Circuit’s decision prevents Breyer from weighing in more for now.

At issue are 4,000 National Guard troops and 700 U.S. Marines called up by Trump earlier this month as immigration raids in L.A. sparked protests. The president said the troops were necessary to protect federal officials and property, while local and state officials called their deployment unnecessary, provocative and illegal.

Lawyers for California say Breyer should now consider two questions not taken up in the appeals court ruling: how long the deployment of the National Guard can last, and whether that deployment violates an 1878 law, known as the Posse Comitatus Act, which bars using the military for domestic law enforcement purposes.

“Deciding those issues would not ‘modify’ the TRO Order nor alter the ‘status quo’ between the parties with respect to the issues pending on appeal in the way that renewing or bolstering this Court’s order to de-federalize the Guard would,” the brief states. “Rather, the court would be ruling only on how the federal troops would be used for how long, and where — issues that the Ninth Circuit acknowledged are not now before the appellate court.”

In his initial restraining order, Breyer “explicitly declined” to consider California’s claims under the Posse Comitatus Act “until a more complete factual record could be developed,” the state noted. And the appeals court, the state wrote, recognized that California planned to continue pursuing that claim.

California also contends that Breyer has jurisdiction to weigh in on how long the troops may stay deployed to L.A. because the appeals court decision was based on the facts on the ground weeks ago.

“Although the Ninth Circuit held that, on the TRO record before it, conditions in and around the federal building in Los Angeles on June 6 and 7 likely satisfied Section 12406(3)’s factual predicate for federalization of National Guard units in the first place, the Ninth Circuit did not consider, nor did the parties present, the questions of how long such federalization is permissible in the face of changed circumstances or whether those federalized troops may be deployed in areas where those conditions never existed or have ceased to exist,” the state’s brief said.

California wants Breyer to allow the state to conduct “limited discovery,” including deposing the acting ICE field office director in L.A. and a U.S. Army major general.

The Trump brief argues that the district court has no jurisdiction over the Posse Comitatus claim, saying the 9th Circuit’s decision “logically forecloses” California’s claim.

The administration is arguing that since the appeals court allowed Trump to federalize the National Guard, those troops are allowed to enforce the law.

“Given the Ninth Circuit’s finding, it would be illogical to hold that, although the President can call up the National Guard when he is unable ‘with the regular forces to execute the laws of the United States,’ the Guard, once federalized, is forbidden from ‘execut[ing] the laws,’” the brief states.

The administration also argues that the court shouldn’t take up the question of how long the troops will stay under federal control, saying that there’s no limit in federal law over how long the president can federalize the Guard and that the courts should defer to the president’s authority when considering the question. Attorneys for the Trump administration also argue that the question is premature.

“There is no basis now to challenge the determination to initially set a 60-day timeframe on the duration of the deployment, particularly when the initial 60-day time frame has not yet elapsed and the actual duration is unknown at present,” the brief states.

They end by arguing that the state has no persuasive reason to question the use of the military, which they insist is necessary for immigration enforcement.

Breyer will now consider both sides’ arguments and rule in the coming days.