Court rethinks ruling that bolstered Trump’s authority over troops

Three of the nation’s most powerful judges met in Pasadena on Wednesday for a rare meeting that could rewrite the legal framework for President Trump’s massive deployment of troops to cities across the United States.

The arrival of thousands of federal troops in Los Angeles over the objection of state and local leaders shocked the country in June. Five months later such military interventions have become almost routine.

But whether deployments can be expanded and for how long depends on a new reading of an obscure subsection of U.S. law that determines the president’s ability to send in the National Guard and federal service members. This law is the subject of heated debate in courts across the country.

Nearly all of these cases resulted in the 9th Circuit’s decision in June. The justices found that the law required a “great degree of deference” for the president to decide when a protest would escalate into a riot and whether a response call to the ground was warranted.

On Wednesday, the same three-judge panel — Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu — made the rare move of reviewing it and signaling a willingness to dramatically rewrite the terms of engagement that supported Trump’s appointment.

“I guess the question is: Why do several hundred people engage in disorderly conduct and throw things at a building over the course of two days of a riot of similar intensity?” said Miller, who was appointed to the bench during Trump’s first term. “Violence is used all the time to thwart the enforcement of federal laws. It happens every day.”

His question fractured the judicial system, separating district judges from appellate panels and the Pacific Coast from the Midwest. Some of Trump’s judicial appointees, including to the 9th Circuit, have sharply differed with their colleagues on the issue. Miller and Bennett appear to be at odds with Ryan D. Nelson and Bridget S. Bade, who expanded on the court’s June ruling with a ruling Monday allowing federal troops to deploy to Oregon.

Most agree that the law itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell violent spasms of civil unrest, the law Trump invokes has almost no historical trace and little precedent to define it.

“It has only been used once in our nation’s history since it was enacted 122 years ago,” California Attorney General Samuel Harbort told the court Wednesday.

Lawyers on both sides consulted legal dictionaries to define the word “sedition” in their favor because the law itself provides no clue.

“The defendants have not demonstrated a credible understanding of the term ‘sedition’ in this case,” Harbort told the panel Wednesday. “We continue to see defendants across the country rely on this interpretation, and we are concerned that the breadth of the definition the government relies on includes all forms of resistance.”

Wiggle room has allowed the courts to lock horns on the most basic facts before them, including whether the president’s claims are demonstrably true.

In the Oregon case, U.S. District Judge Karin Immergut of Portland, another Trump appointee, called the president’s claims about a riot there “fact-free.”

But a separate 9th Circuit panel rejected it, finding that the law “does not limit the facts and circumstances that the President may consider” in deciding whether to use troops domestically.

“The President has the authority to determine and weigh the relevant facts,” the court wrote in Monday’s decision.

Nelson went further, calling the president’s decision “absolute.”

Upon further consideration, Sung signaled a shift towards the opposing interpretation.

“The court is saying that when the law gives discretion, it is based on certain facts,” he said. “I don’t think the court is saying that the underlying decision as to whether a factual basis exists is inherently discretionary.”

This was more like the 7th Circuit decision in Midwest’s Chicago case; This decision found that nothing in the statute “makes the President the sole judge of whether these prerequisites exist.”

“Political dissent is not rebellion,” the 7th Circuit judges wrote. “A protest does not escalate into a riot simply because protesters advocate for multiple legal or policy changes, are well organized, demand significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to bear firearms as permitted by law.”

The Trump administration’s appeal of this decision is currently on the Supreme Court’s emergency docket.

But even the high court’s decision in this case may not determine what might happen in California or New York, experts said. Even if the justices rule against the administration, Trump may choose to invoke the Insurrection Act or another law to justify his next moves; It’s an option he and other officials have raised repeatedly in recent weeks.

The administration has signaled a desire to expand the authority it already has, telling the court on Wednesday that there are no limits on where troops can be deployed or how long they can remain in the president’s employ after taking control.

“Do you think that no matter how the conditions on the ground change, the district court or its review — in a month, six months, a year, five years — will not have the ability to review whether the conditions are still supported? [deployment]?”

“Yes,” said McArthur.

Bennett underscored this point by asking whether the militias that George Washington federalized to suppress the Whiskey Rebellion in 1794 “could continue to be called out indefinitely” under current law; this was a position the government reaffirmed.

“There is not a word in the law about how long they can remain in federal service,” McArthur said. “The President’s determination as to whether necessity has arisen is in his sole and exclusive discretion.”