Latest news with #9thCircuitCourtofAppeals
Los Angeles Times
18 hours ago
- Politics
- Los Angeles Times
California hopes law from bloody era of U.S. history can rein in Trump's use of troops
California's fight to rein in President Trump's deployment of troops to Los Angeles hinges on a 19th century law with a a blood-soaked origin and a name that seems pulled from a Spaghetti Western. In a pivotal ruling this week, Senior U.S. District Judge Charles R. Breyer ordered the federal government to hand over evidence to state authorities seeking to prove that the actions of troops in Southern California violate the Posse Comitatus Act of 1878, which forbids soldiers from enforcing civilian laws. 'How President Trump has used and is using the federalized National Guard and the Marines since deploying them at the beginning of June is plainly relevant to the Posse Comitatus Act,' Breyer wrote Wednesday in his order authorizing 'limited expedited discovery.' The Trump administration objected to the move and has already once gotten a sweeping Breyer ruling that would've limited White House authority over the troops overturned by the 9th Circuit Court of Appeals. This time, the Northern District of California judge made clear he would 'only allow discovery as to the Posse Comitatus Act' — signaling what could be the state's last stand battle to prevent Marines and National Guard forces from participating in immigration enforcement. The Posse Comitatus Act dates back to the aftermath of the Civil War when the American government faced violent resistance to its efforts to rebuild Southern state governments and enforce federal law following the abolition of slavery. The text of the law itself is slight, its relevant section barely more than 60 words. Yet when it was enacted, it served as the legal epitaph to Reconstruction — and a preface to Jim Crow. 'It has these very ignoble beginnings,' said Mark P. Nevitt, a law professor at Emory University and one of the country's foremost experts on the statute. Before the Civil War, the U.S. military was kept small, in part to avoid the kinds of abuses American colonists suffered under the British. Authorities back then could marshal a crew of civilians, called a posse comitatus, to assist them, as sometimes happened in California during the Gold Rush. States also had militias that could be called up by the president to pad out the army in wartime. But law enforcement by the U.S. military was rare and deeply unpopular. Historians have said the use of soldiers to enforce the Fugitive Slave Act — which saw escaped slaves hunted down and returned to the South — helped spark the Civil War. In recent weeks, the Trump administration has used constitutional maneuvers invented to enforce the Fugitive Slave Act to justify using troops to round up immigrants. Experts said leaders from the antebellum South demanded similar enforcement of the law. 'The South was all for posse comitatus when it came to the Fugitive Slave Act,' said Josh Dubbert, a historian at the Rutherford B. Hayes Presidential Library in Ohio. But by the time Congress sent federal troops to begin Reconstruction in earnest in 1867, the landscape was very different. After white rioters razed Black neighborhoods in Memphis and mobs of ex-Confederate soldiers massacred Black demonstrators in New Orleans in the spring of 1866, 'most of the South [was] turned into military districts,' said Jacob Calhoun, a professor of American history at Wabash College and an expert on Reconstruction. 'Most scholars, let alone the American public, do not understand the scale of racial violence during Reconstruction,' Calhoun said. 'They only send these troops in after unimaginable levels of violence.' At the polls, Black voters were met by white gangs seeking to prevent them from casting ballots. 'For most of American history, the idea of an American army intervening in elections is a nightmare,' Calhoun said. '[Posse Comitatus] is reemphasizing this longstanding belief but for more nefarious purposes.' The Posse Comitatus language was tucked into an appropriations bill by Southern Democrats after their party won control of Congress in the election of 1876 — 'possibly the most violent election in American history,' Calhoun said. Historians say white lawmakers in the post-war South sought to enshrine their ability to keep Black men from voting by barring federal forces from bolstering the local militias that protected them. 'Once they're in control of Congress, they want to cut the appropriations for the army,' Dubbert said. 'They attach this amendment to [their appropriations bill] which is the Posse Comitatus Act.' The bill won support from some Republicans, who resented the use of federalized troops to put down the Railroad Strike of 1877 — the first national labor strike in the U.S. 'It is a moment in which white Northern congressmen surrender the South back to ex-Confederates,' Calhoun said. 'With the Posse Comitatus Act, racial violence becomes the norm.' Yet the statute itself largely vanished from memory, little used for most of the next century. 'The Posse Comitatus Act was forgotten for about 75 years, from after Reconstruction to basically the 1950s, when a defense lawyer made a challenge to a piece of evidence that the Army had obtained,' Nevitt said. 'The case law is [all] after World War II.' Those cases have largely turned on troops who arrest, search, seize or detain civilians — 'the normal thing the LAPD does on a daily basis,' Nevitt said. The courts have stood by the bedrock principle that military personnel should not be used to enforce the law against civilians, he said, except in times of rebellion or other extreme scenarios. 'Our nation was forged in large part because the British military was violating the civil rights of colonists in New England,' Nevitt said. 'I really can't think of a more important question than the military's ability to use force against Americans.' Yet, the law is full of loopholes, scholars said — notably in relation to use of the National Guard. Department of Justice has argued Posse Comitatus does not apply to the military's current actions in Southern California — and even if it did, the soldiers deployed there haven't violated the law. It also claimed the 9th Circuit decision endorsing Trump's authority to call up troops rendered the Posse Comitatus issue moot. Some experts feel California's case is strong. 'You literally have military roaming the streets of Los Angeles with civilian law enforcement,' said Shilpi Agarwal, legal director of the ACLU of Northern California, 'That's exactly what the [act] is designed to prevent.' But Nevitt was more doubtful. Even if Breyer ultimately rules that Trump's troops are violating the law and grants the injunction California is seeking, the 9th Circuit will almost certainly strike it down, he said. 'It's going to be an uphill battle,' the attorney said. 'And if they find a way to get to the Supreme Court, I see the Supreme Court siding with Trump as well.'
Yahoo
21-06-2025
- Politics
- Yahoo
Appeals court blocks Newsom's bid to reclaim control of National Guard from Trump
A federal appeals court has indefinitely blocked an effort by California Gov. Gavin Newsom to reclaim control of the National Guard troops President Donald Trump deployed to Los Angeles following unrest related to immigration enforcement. The three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled unanimously that Trump appeared to have acted within his authority when he took control of 4,000 California National Guard troops under a law that has never been invoked without the consent of a state governor. Despite a debate over the level of violence accompanying the protests, the judges — two appointed by Trump and one by President Joe Biden — concluded that the law gives Trump enormous latitude to determine that the protests and related violence were interfering with execution of federal law. The judges said there are limits to the president's ability to call up the Guard, but there was enough evidence of civil unrest and danger to federal officials to justify Trump's actions. The ruling indefinitely sets aside a decision by U.S. District Judge Charles Breyer, who last week issued a temporary restraining order against Trump's deployment of the Guard. Breyer is scheduled to hold another hearing in the case on Friday to consider Newsom's request for a longer-term block of both the Guard deployment and Trump's subsequent deployment of 700 Marines. The three judges on the panel were Trump appointees Mark Bennett and Eric Miller and Biden appointee Jennifer Sung. All three appeared skeptical of Newsom's position during oral arguments on Tuesday. Their Thursday night order was issued on a 'per curiam' basis, which means no judge was identified as the author of the opinion. Newsom, a Democrat, could ask a larger, 11-judge panel of the appeals court to take up the issue or seek emergency relief from the Supreme Court. Despite ultimately ruling for Trump, all three judges flatly rejected his administration's claim that the courts had no role in reviewing his call-up of the military to Los Angeles. Had Trump's call-up been 'obviously absurd or made in bad faith,' they said, courts would clearly have a role in assessing it. However, the appeals court said a line of legal precedents dating to the early 19th century indicated that the court's review of Trump's decision should be 'especially deferential' and that the president's orders should be upheld if they reflect 'a colorable assessment of the facts and law within a 'range of honest judgment.'' Newsom and his attorneys argued that Trump's involvement of the National Guard was likely to fuel more anger from protesters and inflame an already tense situation on the streets of L.A. But the appeals judges said those concerns were too remote to entitle the state to an order reversing Trump's action. 'California's concerns about escalation and interference with local law enforcement, at present, are too speculative. We do not know whether future protests will grow due to the deployment of the National Guard,' the court wrote. 'And we do not know what emergencies may occur in California while the National Guard is deployed.' There are signs that the protests and altercations with authorities have actually diminished in the days since the deployment. After imposing a curfew in downtown L.A last week, Mayor Karen Bass eased the curfew Monday and lifted it on Tuesday. The 9th Circuit judges also concluded that a technical aspect of the law — a requirement that Trump issue his order to call up the Guard 'through' Newsom — was not violated, even though the order was delivered to Newsom's subordinate. Even if it were a violation, they added, it wouldn't justify Breyer's ruling to rescind the order altogether. The appeals court panel had put a temporary hold on Breyer's ruling shortly after he issued it — an administrative measure to give the panel time to hear arguments. The decision Thursday grants the Trump administration's request to keep the hold in place as litigation proceeds. While it's not a final ruling on the legality of Trump's deployment order, by the time those issues are resolved by another panel of the appeals court, the Guard deployment could be over and the dispute could be moot.
Politico
20-06-2025
- Politics
- Politico
California's Iranian diaspora at a crossroads
Presented by DRIVING THE DAY — A federal appeals court has blocked Gov. Gavin Newsom's effort to reclaim control of National Guard troops President Donald Trump deployed to Los Angeles following unrest after ICE raids. As our colleagues Josh Gerstein and Kyle Cheney report, the unanimous ruling from a three-judge panel at the San Francisco-based 9th Circuit Court of Appeals found that Trump appeared to have acted within his broad presidential authority. But ... the court flatly rejected the Trump administration's claim that the courts had no role in reviewing his action. The ruling indefinitely sets aside an injunction from a lower court judge — who found Trump had illegally commandeered 4,000 of California's Guard troops. That said, the rulings only determine whether Trump can continue his deployment while the case proceeds in the courts, which still have not ruled on the broader merits of the case. Attorneys from both sides will be back in U.S. District Court today for the next round of arguments. 'The president is not a king and is not above the law,' Newsom said in a statement late Thursday night. 'We will press forward with our challenge to President Trump's authoritarian use of U.S. military soldiers against citizens.' THE VIEW FROM TEHRANGELES — Earlier this week, the Iranian-American Democrats of California held an emergency meeting to discuss the organization's next steps as President Donald Trump weighs whether to join Israeli strikes against Iran. Leaders of the group had already hit the phones in the hours and days after Israel launched its first strikes on June 12, calling all the members of the state's congressional delegation, including California Sens. Adam Schiff and Alex Padilla, and urging them to prevent U.S. involvement in the attacks. For Southern California's Iranian diaspora, the nation's largest, the fast-moving conflict represents a critical moment for a politically and culturally diverse community that hasn't always gravitated to American political debates, or done so as a coherent bloc. It's also a potentially significant moment for Schiff and Padilla, who may be forced to weigh in on a deeply contentious foreign policy debate that could pit Democratic factions against one another. 'This is the time for the California politicians to speak up,' said Sudi Farokhnia, the Los Angeles-based president of the IADC. 'And not just speak up, but speak up fast and be very precise in making sure that they hold Trump to the rules and laws of this country.' More than one-third of the nearly 400,000 Iranian immigrants in the United States are in the L.A. area, and more than half live in California. Polling conducted by the Public Affairs Alliance of Iranian Americans last year found Iranian-Americans nearly divided on the 2024 presidential election — 45 percent nationwide backed Kamala Harris, compared with 41 percent for Trump. In heavily Democratic California, Democratic-aligned members of the community are hoping to influence the state's Democratic elected officials. But a diverse set of backgrounds — from Muslims to Jews to Christians to Zoroastrians — and what some Iranian American activists describe as a hesitance to publicly engage in a deeply complex issue has left the community with a relatively subdued presence in politics. And the current situation puts Iranian Americans, many of whom fled Iran after the 1979 revolution, in a bind. They've been highly critical of the Iranian regime and would love to see it fall from power, but remain divided on what should be done to make that happen — namely, whether U.S. military involvement should be part of it. 'We are at a fall of the Berlin Wall moment in history,' said Sam Yebri, a former L.A. city council candidate who's been active in Iranian American and Jewish American organizations. 'We know that it is time for this regime to fall and for there to be a free and democratic Iranian government.' Others, including officials in the IADC, are pushing California officials to back Sen. Bernie Sanders' No War Against Iran Act, as well as legislation from Rep. Ro Khanna and other House members that would block the administration from engaging in 'unauthorized hostilities' with Iran. 'The Iranian diaspora across the globe, particularly here in Southern California, has been calling for democracy in Iran and the oppressive authoritarian government there,' said Alex Mohajer, vice president of the IADC and a former state Senate candidate. 'And yet also we don't want military intervention, and we don't want military strikes on our loved ones.' Speaking with CNN on Wednesday, Schiff reiterated his belief in Israel's right to defend itself but sharply criticized Trump for considering U.S. military action without authorization from Congress. A spokesperson for Padilla did not respond to a request for comment. For the Iranian American community in Southern California, the conflict between Iran and Israel may accelerate a shift toward more widespread political involvement. Mohajer said the Woman Life Freedom protests of 2022, which launched in Iran and worldwide in the wake of 22-year-old Mahsa Amini's death in the custody of Iran's morality police, 'really ignited the community, and you've seen a real, newfound sense of activism.' But if Amini's death served as something of a wake-up call for young Iranians in the diaspora, activists say, now that they are engaged, they are more likely to be vocal — and speak out more forcefully for government officials, academic institutions and other organizations to push back on the Iranian regime's human rights abuses. Beverly Hills Mayor Sharona Nazarian, the first Iranian American woman to serve in that role, argued the Israeli strikes were important in preventing the 'grave danger' of a nuclear-armed Iran. But she also said the regime needs to be brought down from within Iran. 'True change in Iran,' she said in a statement, 'must come from its own people.' GOOD MORNING. Happy Friday. Thanks for waking up with Playbook. You can text us at 916-562-0685 — save it as 'CA Playbook' in your contacts. Or drop us a line at dgardiner@ and bjones@ or on X — @DustinGardiner and @jonesblakej. WHERE'S GAVIN? Nothing official announced. THE SCOOP FIRST IN PLAYBOOK: HOMELESSNESS HAMMER — Turlock city officials who refused to allocate $1 for a homeless shelter are meeting Newsom's wrath. The state hit the Central Valley city with a notice this week, warning that its actions violate state housing law, the governor's office exclusively told Playbook. 'Turlock doesn't get an exemption from their moral or legal obligation to support the housing needs of vulnerable populations just because the mayor sent us a list of excuses,' spokesperson Tara Gallegos told Playbook. The notice of violation is a precursor to the attorney general's office suing the city. Turlock's housing plans have already been out of compliance with state law since late 2023 — a designation that forces the city to approve many types of affordable housing projects and allows the state to withhold homelessness and housing funds. Newsom's latest escalation comes as Turlock city officials have refused to walk back a vote that effectively blocked state funding from flowing to a nonprofit that operates a homeless shelter — despite Newsom's repeated warnings that they need to reverse course. The warning letter gives Turlock until July 3 to change course. Newsom has grown increasingly impatient with cities and counties that resist the construction of homeless shelters or affordable housing as the Golden State slips deeper into a worsening crisis, with more people living on the streets every year. He has cast Turlock as part of a 'larger, unacceptable trend' with so-called NIMBY local governments blocking projects. ON THE HILL OLD-SCHOOL APPROACH — Rep. Robert Garcia is campaigning hard to be the ranking Democrat on the House Oversight Committee. But Garcia, the 47-year-old former mayor of Long Beach, is taking an old-school approach to his campaign ahead of next week's caucus election — avoiding talk of the 'generational change' dynamic that has splintered the Democratic Party. As our colleagues Nicholas Wu and Hailey Fuchs report, Garcia has instead fashioned his candidacy around his experience as a big-city mayor and contributions on the Oversight panel, sidestepping the age and seniority question. 'The seniority system in Congress is not going to go away,' Garcia said in a recent interview, downplaying the notion that the race is a proxy battle in a larger war over the future of the party. 'I may not have the most time served in Congress, but I certainly would put my experience up against anybody's.' CLIMATE AND ENERGY DESERT MIRAGE — The Trump administration is endorsing a controversial California groundwater pumping project as it scours the West for water supplies to replace a dwindling Colorado River. Arizona might be interested — but can the project surmount decades of opposition within California? Read last night's California Climate for more on the latest chapter of Cadiz. TOP TALKERS FARMING FLIP-FLOP — Manuel Cunha Jr., president of the Fresno-based Nisei Farmers League, decried Trump's latest flip-flop on immigration crackdowns targeting undocumented farmworkers, The Fresno Bee reports. The criticism follows a report from The Washington Post earlier this week that the Department of Homeland Security announced it was reversing guidance preventing agents from conducting raids at farms, hotels and restaurants — even after the Agriculture Secretary lobbied to block the crackdown. 'I am very disappointed, very disappointed,' Cunha said. 'Even the Secretary of Agriculture stood up for farmers and now we have this news. This is not good for anybody.' The United Farm Workers also criticized the move targeting migrant laborers: 'Farmworkers can't be left to the whims of Donald Trump and whoever spoke to him last,' UFW said in a statement. A DODGERS DENIAL — The Los Angeles Dodgers said it denied ICE agents' request to access its stadium parking lots Thursday, the organization wrote in a post on X. The move comes amid a recent wave of protests in the team's home city — and as the team has been silent about the crackdowns. DHS responded, less than an hour later, with its own post, saying that CBP vehicles were in the stadium parking lot 'very briefly, unrelated to any operation or enforcement.' ICE also replied later, claiming agents were never at the stadium: 'False. We were never there.' Those are some conflicting accounts, to say the least. AROUND THE STATE — CoreCivic, a private prison contractor, has entered an agreement with the federal government to convert its 2,560-bed California City facility into an ICE detention center. It will be the state's largest migrant detention center. (Los Angeles Times) — Renters in Southern California face steeper increases in the aftermath of the January wildfires. The region's 12-month average for rent inflation hit 5.1 percent last month, far above the national average of 3.8 percent. (The Orange County Register) — Gray whale fatalities in the Bay Area are at a 25-year high, with 19 deaths recorded in the region's waters since January. The spike comes as more whales appear to be feeding in the San Francisco Bay, where there's heavy ship traffic. (KQED) PLAYBOOKERS PEOPLE MOVES — Darius Kemp has joined Common Cause as its newest executive director. He was previously head of social equity and community change at Eaze Technologies. BIRTHDAYS — Tom Steel in the office of Assemblymember John Harabedian … Tom Zigo at the Motion Picture Association … Vic Grace … Lionel Richie … Nicole Kidman … BELATED B-DAY WISHES — (was Thursday): First Partner Jennifer Siebel Newsom … U.S. Rep. Pete Aguilar … Sean Coffey at the California Policy Lab … Meisha Angelini at MGA Entertainment … Andrew Perlman at Recurrent Ventures … Jay Sanderson at American Jewish University … investment banker Kenneth Lipper … Tom Hoare … Kevin Schmidt at Axiom Advisors … (was Wednesday): Ryan Kenny at Clean Energy Fuels … (was Tuesday): Jacob McIntosh at TriNet CLARIFICATION — Adam Taylor is now Rep. Scott Peters' Washington DC-based chief of staff. MaryAnne Pintar, a longtime Peters aide, is the congressman's chief of staff. WANT A SHOUT-OUT FEATURED? — Send us a birthday, career move or another special occasion to include in POLITICO's California Playbook. You can now submit a shout-out using this Google form.
Politico
20-06-2025
- Politics
- Politico
Appeals court blocks Newsom's bid to reclaim control of National Guard from Trump
A federal appeals court has indefinitely blocked an effort by California Gov. Gavin Newsom to reclaim control of the National Guard troops President Donald Trump deployed to Los Angeles following unrest related to immigration enforcement. The three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled unanimously that Trump appeared to have acted within his authority when he took control of 4,000 California National Guard troops under a law that has never been invoked without the consent of a state governor. Despite a debate over the level of violence accompanying the protests, the judges — two appointed by Trump and one by President Joe Biden — concluded that the law gives Trump enormous latitude to determine that the protests and related violence were interfering with execution of federal law. The judges said there are limits to the president's ability to call up the Guard, but there was enough evidence of civil unrest and danger to federal officials to justify Trump's actions. The ruling indefinitely sets aside a decision by U.S. District Judge Charles Breyer, who last week issued a temporary restraining order against Trump's deployment of the Guard. Breyer is scheduled to hold another hearing in the case on Friday to consider Newsom's request for a longer-term block of both the Guard deployment and Trump's subsequent deployment of 700 Marines. The three judges on the panel were Trump appointees Mark Bennett and Eric Miller and Biden appointee Jennifer Sung. All three appeared skeptical of Newsom's position during oral arguments on Tuesday. Their Thursday night order was issued on a 'per curiam' basis, which means no judge was identified as the author of the opinion. Newsom, a Democrat, could ask a larger, 11-judge panel of the appeals court to take up the issue or seek emergency relief from the Supreme Court. Despite ultimately ruling for Trump, all three judges flatly rejected his administration's claim that the courts had no role in reviewing his call-up of the military to Los Angeles. Had Trump's call-up been 'obviously absurd or made in bad faith,' they said, courts would clearly have a role in assessing it. However, the appeals court said a line of legal precedents dating to the early 19th century indicated that the court's review of Trump's decision should be 'especially deferential' and that the president's orders should be upheld if they reflect 'a colorable assessment of the facts and law within a 'range of honest judgment.'' Newsom and his attorneys argued that Trump's involvement of the National Guard was likely to fuel more anger from protesters and inflame an already tense situation on the streets of L.A. But the appeals judges said those concerns were too remote to entitle the state to an order reversing Trump's action. 'California's concerns about escalation and interference with local law enforcement, at present, are too speculative. We do not know whether future protests will grow due to the deployment of the National Guard,' the court wrote. 'And we do not know what emergencies may occur in California while the National Guard is deployed.' There are signs that the protests and altercations with authorities have actually diminished in the days since the deployment. After imposing a curfew in downtown L.A last week, Mayor Karen Bass eased the curfew Monday and lifted it on Tuesday. The 9th Circuit judges also concluded that a technical aspect of the law — a requirement that Trump issue his order to call up the Guard 'through' Newsom — was not violated, even though the order was delivered to Newsom's subordinate. Even if it were a violation, they added, it wouldn't justify Breyer's ruling to rescind the order altogether. The appeals court panel had put a temporary hold on Breyer's ruling shortly after he issued it — an administrative measure to give the panel time to hear arguments. The decision Thursday grants the Trump administration's request to keep the hold in place as litigation proceeds. While it's not a final ruling on the legality of Trump's deployment order, by the time those issues are resolved by another panel of the appeals court, the Guard deployment could be over and the dispute could be moot.
Los Angeles Times
20-06-2025
- Politics
- Los Angeles Times
9th Circuit sides with Trump administration in challenge to L.A. troop deployment
The 9th Circuit Court of Appeals decided Thursday to leave troops in Los Angeles in the hands of the Trump administration while California's objections are litigated in federal court, finding the president had broad — though not 'unreviewable' — authority to deploy the military in American cities. 'We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard ... is completely insulated from judicial review,' Judge Mark J. Bennett of Honolulu, a Trump appointee, wrote for the appellate panel. 'Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor ... our review of that decision must be highly deferential.' Legal scholars said the decision was expected — particularly as the 9th Circuit has moved from the country's most liberal to one of its most 'balanced' since the start of Trump's first term. 'It's critically important for the people to understand just how much power Congress has given the president through these statutes,' said Eric Merriam, a professor of legal studies at Central Florida University and an appellate military judge. 'Judges for hundreds of years now have given extreme deference to the president in national security decisions, [including] use of the military,' the expert went on. 'There is no other area of law where the president or executive gets that level of deference.' The appellate panel sharply questioned both sides during Tuesday's hearing, appearing to reject the federal government's assertion that courts had no right to review the president's actions, while also undercutting California's claim that President Trump had overstepped his authority in sending troops to L.A. to quell a 'rebellion against the authority of the United States.' 'All three judges seemed skeptical of the arguments that each party was making in its most extreme form,' said Elizabeth Goitein, senior director of the Liberty and National Security Program at NYU's Brennan Center for Justice. 'I was impressed with the questions,' she went on. 'I think they were fair questions, I think they were hard questions. I think the judges were wrestling with the right issues.' The ruling Thursday largely returns the issue to U.S. District Judge Charles R. Breyer. Unlike Breyer, whose temporary restraining order last Thursday would have returned control of the National Guard to California, the appellate court largely avoided the question of whether the facts on the ground in Los Angeles amounted to a 'rebellion.' Instead, the ruling focused on the limits of presidential power. Bennett's opinion directly refuted the argument — made by Assistant Atty. Gen. Brett Shumate in Tuesday's hearing — that the decision to federalize national guard troops was 'unreviewable.' 'Defendants argue that this language precludes review,' the judge wrote. '[But Supreme Court precedent] does not compel us to accept the federal government's position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.' He also quoted at length from the 1932 Supreme Court decision in Sterling v. Constantin, writing '[t]he nature of the [president's] power also necessarily implies 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.' Shumate told the judge he didn't know the case when Bennett asked him about it early in Tuesday's hearing. 'That is a key case in that line of cases, and the fact he was not aware of it is extraordinary,' Goetein said. Merriam agreed — to a point. 'That's a nightmare we have in law school — it's a nightmare I've had as an appellate judge,' the scholar said. However, 'it's actually a good thing that the attorney representing the U.S. was not planning to talk about martial law in front of the 9th Circuit,' Merriam said. One thing Thursday's ruling did not touch is whether the administration violated the Posse Comitatus Act by deputizing the military to act as civilian law enforcement — an allegation California leveled in its original complaint, but which Breyer effectively tabled last week. 'The Posse Comitatus Actclaim has not been resolved because it was essentially not ripe last Thursday,' when troops had just arrived, Goetein said. 'It is ripe now.' 'Even if the 9th Circuit agrees with the federal government on everything, we could see a ruling from the district court next week that could limit what troops can do on the ground,' she said. In the meantime, residents of an increasingly quiet Los Angeles will have to live with the growing number of federal troops. '[Congress] didn't limit rebellion to specific types of facts,' Merriam said. 'As much as [Angelenos] might say, 'This is crazy! There's not a rebellion going on in LA right now,' this is where we are with the law.'
