California Renews Push to Bring National Guard Back Under Newsom’s Command

Lawyers for California and for the Trump administration returned to court Friday  to argue whether the president has the authority to extend the federal deployment of more than 300 members of the state’s National Guard indefinitely.

In a U.S. District Court in San Francisco, Judge Charles Breyer spent the better part of an hour-and-a-half-long hearing asking the U.S. attorney to cite specific evidence to support the decision to federalize state troops during protests against immigration enforcement in Los Angeles.

“What evidence is there?” Breyer repeatedly asked Deputy Assistant Attorney General Eric Hamilton, who alleged threats to federal personnel and property.

Breyer then asked the U.S. attorney whether there are any checks on the president’s power to determine the length of a deployment.

“Is it your view that the president can keep troops federalized indefinitely without any judicial review?” Breyer asked.

“Yes,” Hamilton answered.

“In other words, like diamonds, it’s forever, right?” Breyer pressed. “As long as the president believes in his discretion that justifies the federalization of the National Guard, it’s forever.”

California challenged President Donald Trump’s ongoing deployment in a renewed motion in September, after the president extended the federalization of 300 troops through the November election, and again through Feb. 2.

“The federal government has taken the remarkable position that they can make decisions about the deployment of the National Guard, including here,” Bonta said after the hearing. “And judges can do nothing about it, that there is no check, that there is no balance, that there is no coequal branch of government called the judiciary to review their decision.”

Breyer did not immediately issue a ruling Friday, but said one would come soon.

The judge previously ruled that the use of state troops violated the Constitution and the Posse Comitatus Act, and ordered the administration to cease using them for policing activities. However, because federal appeals court judges granted the government’s request for a stay, the order never took effect.

Defense Secretary Pete Hegseth initially federalized 4000 National Guard troops and more than 700 Marines to Los Angeles in early June.

“Violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property,” Trump said in a June 7 memo. “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion.”

The necessity of that deployment has been the center of a see-sawing legal battle between California and the Trump administration, and has become the model for mobilizations throughout the country.

In October, the Trump administration redeployed 214 California National Guard troops to Portland, an action ultimately prevented by a federal judge in Oregon. Those guards remained outside the city at a base until November, when the president released them from their mission. At this time, the troops are in the process of demobilizing at Fort Hood, Texas, according to a spokesperson for Northern Command, but are still under the federal government’s command.

The 100 troops in Los Angeles “remain staged at various locations” according to the US government’s court filings, “to provide rapid response protection support to federal facilities, functions, and personnel.”

The state’s argument also drew attention to an Aug. 25 presidential order instructing “the Secretary of Defense [to] ensure the availability of a standing National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment.”

As the administration’s justification for the initial mobilization in Los Angeles remained the subject of fierce national debate over the limits of presidential power, California argued that the continued federalization of the 100 troops could no longer be rationalized by any measure.

“The lack of any violence or other justifying events in Los Angeles and Defendants’ choice to remove most of those troops from Los Angeles confirms it,” Bonta asserted in court filings urging the court to “enjoin any continued federalization and deployment of National Guard troops in and around Los Angeles, and end this unlawful federalization now.”

California has also argued that the Trump administration’s federalization of the state’s national guard has become a blueprint in a war against blue states and cities.

“Defendants began to implement in other parts of the country the model of military occupation that began in Los Angeles,” attorneys wrote in court filings.

It remained unclear, however, what effect a ruling on California’s renewed motion would have, given other cases challenging the federalization of state’s national guard moving through the courts. That includes Trump v. Illinois, which is on the emergency docket before the U.S. Supreme Court.

After the hearing, Bonta said that all of the cases currently moving through the courts focus on the same component of the law  that allows the president to deploy the National Guard if there’s an inability to execute the federal law with the regular forces.

“And that’s what the U.S. Supreme Court is going to look at, at least the aspect of what are regular forces and how you’re supposed to analyze that issue,” Bonta said.

KQED’s Amanda Hernandez contributed to this report.