Judge to Rule Whether Trump’s Use of Troops in LA Violated Federal Law

Attorneys for the state and federal governments gave their final arguments on Wednesday over the legality of President Donald Trump’s ongoing deployment of the National Guard in Southern California.

The three-day court hearing wrapped up the day after Trump announced he could send National Guard troops to other U.S. cities, such as Washington, D.C., and Oakland, to address local crime rates.

Earlier this year, California Attorney General Rob Bonta sued the Trump Administration over the mobilization of around 4,000 California National Guard members and 700 Marines to Los Angeles to clamp down on protests against immigration enforcement raids.

Closing arguments hinged on whether the president violated a federal law restricting the use of the U.S. military for domestic law enforcement purposes, the Posse Comitatus Act.

“It’s a president who, over the wishes of the local officials, is deciding to send in the National Guard, saying things are terrible on the ground,” said Jessica Levinson, professor at Loyola Law School, on KQED’s Political Breakdown. “For California, what they’re arguing in this case is essentially, do you have the power to send in the troops? And once the troops are here, did they violate the Posse Comitatus Act?”

Senior District Judge Charles R. Breyer is expected to decide in the coming weeks.

“The judge will do some line drawing to say, ‘I understand the line between what is acceptable for the federal government to do with the Marines and National Guard and what’s not acceptable,’ and then will say there is evidence of if they did or did not cross that line,” said David Levine, professor of law at UC Law San Francisco.

U.S. attorneys argued that Trump adhered to federal law that prohibits presidents from ordering the military to enforce law domestically, with few exceptions, by limiting military actions to protecting federal officers.

Deputy Assistant Attorney General Eric Hamilton described protests in Los Angeles as a “rebellion” and deemed them a risk.

Breyer said the reasoning behind the order was vague, and asked attorneys to define legal limits on the president sending the military in to enforce federal law.

“We’re going to see federal officers everywhere if the president determines there’s risk,” Breyer said. “There’s a big difference between a violation of the law and the inability to address the violation of the law by (local) law enforcement.

“That’s what police officers do every day. They walk the streets, they see violations of the law, and they take appropriate actions that they can take. Is there any evidence that local law enforcement, the SWAT teams or any local law enforcement were unable to enforce the law?”

Around 300 troops are still stationed in California, down from more than 4,000 earlier this spring. California argued the deployment violated state police power and is asking Judge Breyer to order the Trump administration to return control of the remaining troops to Gov. Gavin Newsom. The governor is the commander-in-chief of each state’s National Guard.

While there are rare instances where the president has taken state resources and federalized them, “most of the time it’s with [the state in] cooperation during an emergency,” Levine said, pointing to incidents like Hurricane Katrina.

California Deputy Attorney General Meghan Strong argued that recent incidents, such as when National Guard soldiers in Humvees arrived at Los Angeles’s MacArthur Park this July, lacked a clear cause.

The action “harms quasi-sovereign interest in the health and wellbeing of residents … Shows of force like that in MacArthur Park are designed to strike fear in civilians so they will obey and comply with law enforcement and military commands alike,” Strong said. “The operations that the federal government and the military were engaging in escalated tensions and caused further harm to the state and its civilians.”

Experts following the case closely say this is a unique case that has not been tested before in court.

The U.S. Constitution limits presidential and military power on domestic soil in the Third Amendment. But, “besides the Third Amendment, the president has huge amounts of power over the military,” Levine said.

The Posse Comitatus Act is a relic of the Reconstruction period, passed after several southern states sought to prohibit the federal government from using the military to protect recently freed slaves after the Emancipation Proclamation.

On Wednesday, both parties argued whether a federal judge has the authority to rein in the president’s use of the military domestically. The defendants argued that the state has no standing to base their case on Posse Comitatus because it falls under federal criminal law.

Strong said on Tuesday that the military could assist federal law enforcement at any time danger may be present and can protect federal buildings.

The outcome of California’s lawsuit against Trump for deploying troops in Los Angeles, however, may not necessarily establish precedent in other jurisdictions.

“Whatever Breyer rules, it’s only binding on these parties, and could be persuasive in other legal cases, but not binding,” Levine said. “The president hasn’t yet moved into Republican controlled states. If he moves into Houston, he’ll have an eager conversation with Gov. Abbot. Until we get to another blue state, we might not face this problem.”

KQED reporter Brian Krans and Julie Small contributed to this report.