Three of the nation's most powerful judges met Wednesday in Pasadena for a rare conclave that could rewrite the legal framework for President Trump's massive troop deployment in cities across the United States.
The decision to flood Los Angeles with thousands of federal troops, over the objections of state and local leaders, shocked the country back in June. Five months later, such military interventions have become almost commonplace.
But whether the deployment can expand — and how long it can continue — depends on a new reading of a little-known subsection of the U.S. code that governs the president's ability to direct the National Guard and federal service personnel. The code has sparked heated debate in courts across the country.
Almost all of these cases were decided by the 9th Circuit's decision in June. The justices concluded that the law at issue requires “great deference” to the president so that he can decide when a protest becomes an insurrection and whether action in response is warranted.
On Wednesday, the same three justices — Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu — took the rare step of reviewing it, signaling a willingness to radically rewrite the terms of engagement that underpinned Trump's rollout.
“I think the question is, why do a couple hundred people over the course of two days go on a rampage and throw things at a building that is comparable in violence to a riot?” said Miller, who was appointed to the position during Trump's first term. “Violence is constantly used to thwart the enforcement of federal law. It happens every day.”
The question he posed split the court system, separating district judges from appellate benches and the Pacific Coast from the Midwest. Some of Trump's judicial appointees have broken sharply with their colleagues on the issue, including on the 9th Circuit. Miller and Bennett appear to be at odds with Ryan D. Nelson and Bridget S. Bade, who elaborated on the court's June ruling in Monday's decision that allowed federal troops to be stationed in Oregon.
Most agree that the law itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell spasms of violent domestic unrest, the law Trump invoked has almost no historical trace and few precedents to define it.
“It has only been used once in the history of our country since it was enacted 122 years ago,” California Solicitor General Samuel Harbort told the court Wednesday.
Lawyers on both sides have turned to legal dictionaries to define the word “insurrection” in their favor, as the law itself offers no clues.
“The defendants have not presented a credible understanding of the term 'insurrection' in this trial,” Harbort said Wednesday. “We continue to see defendants rely on this interpretation across the country, and we are concerned that the broadness of the definition relied upon by the government … includes any form of resistance.”
That wiggle room has allowed courts to squabble over the most basic facts before them, including whether the president's statement must be demonstrably true.
In the Oregon case, Portland-based U.S. District Judge Karin Immergut, another Trump appointee, called the president's claims about an insurrection there “not related to the facts.”
But a separate 9th Circuit panel rejected her decision, finding that the law “does not limit the facts and circumstances that the President may consider” when deciding whether to use soldiers domestically.
“The President has the authority to discover and weigh the relevant facts,” the court wrote in its decision Monday.
Nelson went further, calling the president's decision “absolute.”
After further consideration, Song signaled a move to the opposite interpretation.
“The court says that when a statute grants discretionary power, it is based on certain facts,” she said. “I don’t think the court will say that the underlying decision about the existence of a factual basis is inherently discretionary.”
It was more like the 7th Circuit's Chicago decision, which found that nothing in the statute “makes the President the sole judge of the existence of these preconditions.”
“Political opposition is not rebellion,” the 7th Circuit judges wrote. “A protest does not become an insurrection simply because the protesters are advocating for multiple legal or policy changes, are well organized, calling for significant changes in the structure of the U.S. government, using civil disobedience as a form of protest, or exercising their Second Amendment right to bear arms as currently permitted by law.”
The Trump administration's appeal of this decision is currently pending before the Supreme Court on an urgent basis.
But experts say even the Supreme Court's decision in the case cannot determine what might happen in California — or, for that matter, in New York. Even if the justices ruled against the administration, Trump could invoke the Insurrection Act or other law to justify his next actions, an option he and other officials sailed repeatedly in recent weeks.
The administration has signaled its desire to expand the power it already wields, telling the court Wednesday that there are no limits on where troops can be deployed or how long they can remain in the president's service once he takes control of them.
“Do you think that no matter how much conditions on the ground change, there will be no way for a district court or supervisory authority to check, in a month, six months, a year, five years, whether conditions still support [deployment]? Bennett asked.
“Yes,” Deputy Atty. General Eric MacArthur stated this.
Bennett pressed this point, questioning whether, under current law, the militia federalized by George Washington to suppress the Whiskey Rebellion of 1794 could “remain in the draft forever,” a position the government again reaffirmed.
“There is nothing in the law about how long they can remain in federal service,” MacArthur said. “The President's determination as to whether such a need has arisen remains in his sole and exclusive discretion.”
