California deployment first to face lawsuit

The first use of the National Guard to protect federal immigration operations came in the Los Angeles area in June, when Trump federalized the California National Guard, overruling Gov. Gavin Newsom’s (D-CA) objections, to protect federal officials and facilities following unrest in the city.

Newsom and California officials filed a lawsuit challenging Trump’s ability to federalize the California National Guardsmen, which resulted in an injunction from U.S. District Judge Charles Breyer. Breyer’s injunction was quickly halted by the U.S. Court of Appeals for the Ninth Circuit, with the appeals court set to hear oral arguments on the matter later this month.

While Breyer’s initial order was quickly quashed, he still declared jurisdiction over California’s claim that Trump’s troops had violated the Posse Comitatus Act by having the National Guard engage in regular law enforcement activities. A trial was held on the matter in August, with Breyer again ruling against Trump and the Ninth Circuit again halting Breyer’s ruling indefinitely.

Oregon and Illinois deployment lawsuits offer more rulings

Trump took his plans to use the National Guard to protect federal law enforcement and assets to a pair of Democrat-run cities in blue states in recent weeks, prompting lawsuits in Oregon and Illinois on similar matters.

Oregon officials were able to get a U.S. district judge to halt the federalization of the Oregon National Guard, prompting the Trump administration to deploy federalized forces from other states to Portland. U.S District Judge Karin Immergut again blocked the effort, blocking any federalized National Guardsmen from being deployed to Portland.

Bill Shipley, a former federal prosecutor, pointed out on his Substack earlier this week the second order from Immergut essentially “means the Commander in Chief has been blocked by a federal District Judge from deploying the armed forces as he deems necessary — because she thinks it is not necessary.”

The Ninth Circuit later allowed the Trump administration’s federalization of the Oregon National Guard, but has yet to lift Immergut’s block on the deployment of any federalized National Guardsmen to Portland. During a hearing on Thursday, one of the judges on the Ninth Circuit panel said it appeared there was no evidence of unlawful action with Trump’s Portland deployment plans.

While the Ninth Circuit considered Trump’s appeal of Immergut’s order, a U.S. District Court judge in Illinois considered a lawsuit filed by Prairie State officials over the president’s bid to use the National Guard in Chicago. The hearing resulted in U.S. District Judge April Perry blocking Trump’s deployment of troops to Chicago with an injunction, which the administration has appealed to the U.S. Court of Appeals for the Seventh Circuit to overturn.

Shipley opined that the Justice Department should have directly to the Supreme Court, but with the various legal sagas all offer the variety of rulings it seems likely the high court will see a request to hear a case regarding Trump’s use of the National Guard.

The issue could make its way to the Supreme Court

Regardless of where the legal battles are resolved, John Shu, a constitutional law expert who served in both Bush administrations, believes the president’s current use of the troops is within his authority.

“Because there are very strong indications and evidence that the riotous behavior is organized and pre-planned, it strengthens the president’s case to utilize the National Guard to protect federal interests and assets, though not to serve as local law enforcement,” Shu told the Washington Examiner.

While recent uses of the National Guard have generally been in support efforts following natural disasters, Shu pointed to two instances where presidents used troops to ensure compliance with racial integration at schools in the 20th century as examples of precedent supporting the president’s authority.

“Anybody who supports what President Eisenhower did in 1957 in Arkansas and what President Kennedy did in 1962 in Mississippi, which was to send thousands of active-duty and federalized National Guard troops, over the Democrat state governors’ objections, to enforce federal law and protect federal interests, then he or she, to be intellectually consistent, has to be okay with what President Trump is doing from a legal perspective,” Shu said.

“You may not like the federal laws that the Trump Administration is enforcing, but you have to concede that enforcing them and protecting federal personnel and assets is perfectly legal,” he added.

While he believes the administration is on solid legal ground with its current troop deployments, he believes it will be resolved at the high court.

“I think it has to be resolved at the Supreme Court.  All the jurisdictions suing the Administration, such as Portland, Oregon or Chicago, Illinois, are liberal jurisdictions. The Seventh Circuit, which covers Illinois, is liberal, and the Ninth Circuit which covers Oregon and California, is extremely liberal,” Shu told the Washington Examiner.

“Even if it wasn’t the case, it’s one of these situations where, regardless of who wins, the loser is going to appeal. Let’s say, hypothetically, that one of these appellate courts rules in favor of the administration.  I guarantee you Illinois or Oregon or California would petition for either en banc or certiorari within 30 seconds,” he added.

TRUMP’S NATIONAL GUARD PUSH GAINS STEAM THANKS TO STRONG LEGAL FOOTING

With the cases occurring over multiple appeals court circuits, if the different circuits reach different decisions it could significantly increase the odds the justices take up a case challenging Trump’s troop deployment.

“A circuit split almost always increases the chances that the Supreme Court will take a case,” Shu said.