The Constitution and the laws are on the president’s side.
The Constitution and the laws are on the president’s side.
E arlier this week, the U.S. appeals court in San Francisco heard arguments in Gavin Newsom v. Donald Trump on whether the president can dispatch troops to quell the Los Angeles riots. But the judges first should realize that the Constitution gives them little right to second-guess the executive’s exercise of powers over the military during an emergency. If they press ahead to exercise judicial review over the deployment, they will not only disregard the limits on their own powers, but they will also undermine the national government’s ability to act decisively in moments of crisis.
Two weeks of anti-ICE riots in Los Angeles called for decisive presidential action. Television news video displayed violence that obstructed the enforcement of federal immigration law. Protesters launched violent riots to forcibly blockade and enter federal buildings, attack federal officers, and prevent Department of Homeland Security agents from carrying out their duties. Protesters shut down freeways, set cars on fire, and attacked traffic. Disorder spread to other cities, such as Austin, Chicago, and Denver.
Trump called up 4,000 California National Guardsmen and 700 U.S. Marines and deployed them to Los Angeles. Rather than welcome federal assistance to restore order, Governor Gavin Newsom greeted the troops with hostility. He declared the deployment “an illegal act, an immoral act, an unconstitutional act” and accused Trump of undertaking “the acts of a dictator, not a President.”
Nothing could be further from the truth. Nevertheless, Newsom found one willing believer, federal District Judge Charles Breyer of San Francisco, who issued a temporary restraining order last week to rescind the federalization of the Guard. Breyer deeply misunderstood the president’s role when he likened Trump to a king. “The President is, of course, limited to his authority,” Breyer said at the hearing. “That’s the difference between a constitutional government and King George. It’s not that a leader can simply say something and it becomes it.” This politically loaded statement came only hours before the start of what Judge Breyer knew would be a weekend of nationwide anti-Trump “No Kings” protests. No wonder that the Ninth Circuit swiftly stayed Breyer’s temporary restraining order.
Why the Ninth Circuit Should Find the Case Nonjusticiable
Judge Breyer’s deeper error, one that the court of appeals would do well to reverse, is his headlong rush to review executive decisions in the midst of an emergency. Under Supreme Court case law, the courts should defer to the president on whether the circumstances justified calling out the militia — the 18th century constitutional equivalent of the National Guard. Deference reflects the institutional roles that the Constitution assigns to the executive and the judiciary. The Framers concentrated all of the executive branch’s authority in a single man so that the nation could benefit from “energy in the executive,” which Alexander Hamilton described as “a leading character in the definition of good government.” To protect the nation’s security and enforce the laws, Hamilton argued in Federalist No. 70, the president must be able to act with “decision, activity, secrecy, and dispatch.” The president decides if an emergency exists. This answer is supported by precedent going back to the War of 1812 and is based on foundational separation-of-powers considerations.
In addition to the ability to respond swiftly and decisively, President Trump will have access to information superior to what the courts or Congress will have on domestic disorder. Justice Robert Jackson, in his 1948 decision in C. & S. Air Lines v. Waterman Steamship Corp., brought the point out:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.
Immigration policy is closely linked to foreign policy, traditionally an executive preserve. In the case of the L.A. riots, foreign actors, including drug cartels and human traffickers who may have ties to foreign governments, may be implicated in the resistance to federal immigration enforcement activities.
These concerns will be enhanced during an emergency. Such situations will normally demand a rapid and decisive response. If the president were hamstrung in responding to a crisis — even before it got out of hand — the crisis could easily become more dangerous. If the president’s responses are subjected to judicial review, appropriate action would be delayed, whether or not a reviewing court eventually assessed the situation as the president did. In general, the executive’s exercise of emergency powers must be non-reviewable if it is to be effective.
Meanwhile, courts have little ability to judge whether opposition to federal policy has coalesced into organized resistance to federal law enforcement. Judicial review, which acts slowly and deliberately in formal courtroom proceedings, could delay and even paralyze the federal government in emergencies when time is of the essence. The Newsom v. Trump suit asks courts to overthrow this traditional respect for the responsibilities of the elected branches of government.
Even if the court of appeals were to make the mistake of upholding Breyer’s order, the Supreme Court would quickly intervene to prevent judges from intruding beyond their proper ambit. Judges must leave Trump’s opponents to the mechanisms for opposition established by the Framers: Congress’s authority over funding, legislation, and oversight; the national political system including political parties; and ultimately impeachment. It is healthier for our political system to rely on these forces than on judicial review — which itself, as here, can appear politicized.
Why Newsom’s Merits Arguments Are Erroneous
Were the Ninth Circuit to reach the merits, it should reject Newsom’s weak objections. The governor, for example, declared that Trump’s actions were “a serious breach of state sovereignty.” He seemed unaware that his views resembled those of the authors of the South Carolina Ordinance of Nullification of 1832, who declared that the federal tariffs of 1828 and 1832 were null and void within that state and could not be enforced there by President Andrew Jackson. Newsom also echoed the arguments of the Southern secessionists of 1861, who defied President Abraham Lincoln’s authority to enforce federal law in their confederacy. And Newsom’s language evoked memories of the segregationist governors of the 1950s and 1960s, who refused to follow federal court orders until Presidents Eisenhower, Kennedy, and Johnson used federal forces to enforce federal law.
The Court of Appeals should also take seriously the challenge to federal authority raised by California’s political system. Democratic mayors and politicians demanded that the federal government withdraw, not merely the military forces deployed to Los Angeles, but also the Immigration and Customs Enforcement officials who were carrying out federal immigration priorities. California officials appear to believe that their jurisdiction was somehow beyond the reach of federal law. Some of these irresponsible politicians threatened that peace would not return to their cities until ICE retreated. One L.A. city council member asked the L.A. police chief to create a warning system that would track the movements of ICE agents and then notify specific neighborhoods where those agents were planning to operate. In short, this city official was asking the local police force to commit the crime of obstructing the enforcement of federal law.
Thus, even if the court of appeals were to compound Judge Breyer’s mistakes by deciding to subject the deployment of troops to judicial review, it should still find in Trump’s favor. Newsom and other Democrats have argued that the federal law permits Trump to federalize the state National Guard only under certain emergency conditions that do not exist. The relevant statute authorizes the president to act in cases where there is a “danger of rebellion.” The White House declared that L.A. was the scene of a “form of rebellion” when rioters overwhelmed local police and prevented federal officers from performing their duty. Congress, also allows the president to federalize the National Guard when he “is unable with the regular forces to execute the laws of the United States.” It seems undeniable that rioters are preventing ICE agents from executing immigration law — indeed, that is the very purpose of the disturbances.
Newsom’s alternative argument is that federal law requires a governor to sign off on military deployment within a state. And Title 10 does state that the president must issue an order calling up the National Guard “through the governor.” But this is not a substantive rule giving Newsom veto power over Trump’s action. If it were, it would constrain the president’s power to respond to emergency situations in a constitutionally dubious way. The court of appeals should reject such a reading out of hand — indeed, in 1990 the Supreme Court unanimously rejected a similar argument made by Michael Dukakis and other governors who tried to prevent President Reagan from sending National Guard units to train in Central America. The statute instead is best read as a directive to the governor to serve as the conduit for a presidential order.
Indeed, the absurdity of reading the statute to require a governor’s sign-off before the president can federalize the Guard is easily shown by observing that, in the case of the District of Columbia — which of course has no governor — the statute says that the president’s order is to run “through the commanding general of the National Guard” of the district. On Newsom’s reading of the statute, even if the District of Columbia were being invaded by a foreign nation, the president could not federalize the district’s Guard in the Capitol’s defense without the approval of the local Guard commanding general. That simply cannot be right.
Why the Courts Should Let the Political Process Work
The exercise of judicial review would not just drag the federal courts beyond their proper constitutional role, it would also narrow the room for political maneuver to settle the dispute. Trump too could learn from the first two weeks of conflict, not by giving in but, after defending the executive’s right to execute federal law, by pursuing a course toward compromise. He could follow the example of Abraham Lincoln at the outset of the Civil War.
The paradigm case of the exercise of what is now known as the executive’s protective power is found in Lincoln’s conduct immediately after his inauguration on March 4, 1861, when he was forced to take the momentous decision whether to defend Fort Sumter and the Union Army forces stationed within it.
Secessionists from South Carolina had been besieging the fort for weeks before Lincoln was sworn in. But Lincoln did not fully realize the gravity of the federal forces’ situation until he had become president. One of the first things he saw was a letter from Major John Anderson, the garrison commander, informing him that it was impossible to defend or relieve Fort Sumter. Lincoln consulted Senior General Winfield Scott, who agreed with Anderson’s assessment. Nonetheless Lincoln, without seeking war, determined not to evacuate the fort. Years later, Lincoln’s secretary of the Navy said that no decision that Lincoln took in the entire course of the Civil War gave him “greater annoyance and embarrassment than the difficult one relating to Fort Sumter and its garrison.”
In his inaugural address of March 4 and in earlier speeches, Lincoln had articulated the policy he intended to follow toward the secessionists. In January 1861, he had made it clear that he and his party had won the presidency, that he had “a constitutional right” to the office, and that he would “suffer death before I will consent . . . to any concession or compromise that looks like buying the privilege of taking possession of this Government.” On the other hand, he insisted that he wanted no bloodshed or violence unless it was forced upon the federal government. In the inaugural address, he maintained that secession was unconstitutional and accordingly that it was his “simple duty” to see that “the laws of the Union [will] be faithfully executed in all the States.” In particular, he said, “the power confided to me, will be used to hold, occupy, and possess the property, and places belonging to the government” and to carry out federal law.
That is what Lincoln did at Fort Sumter. He ordered the U.S. military to play a defensive role in protecting federal property and to force the Confederacy to fire the first shot. He gave Southerners the last clear chance to avoid secession and, if they still chose to break the union, to make clear that it remained their choice, not his, to go to war.
And that is in substance what President Trump has done in Los Angeles, even if the two scenarios are very different. Contrary to the accusations of California officials and the criticism of pundits, Trump has actually ordered the military to perform a modest role in the riots. He has not invoked the Insurrection Act to allow the military to conduct riot control or other law enforcement operations. He has left policing to local authorities, and he continues to use civilian federal law enforcement to carry out immigration law. Trump instead has deployed the military for the narrower mission of protecting federal property — the ICE detention center within the L.A. federal building — and federal personnel enforcing federal immigration law by detaining illegal aliens. Trump has placed troops to perform a defensive role, much like Lincoln’s orders to Major Anderson at Fort Sumter. And just as with Fort Sumter, the limited protection of federal property will make clear that those who are violating the Constitution and the laws are the attackers.
The Need for Prudence
The Constitution and the laws are on Trump’s side. Moreover, Trump won reelection to the presidency primarily because of his stance on illegal immigration. His administration is not going to cave on this issue, nor should it. And the Democratic Party, which has been captured by its most radical and irresponsible elements, is failing as an opposition. Despite the propaganda, Trump has behaved, so far, as a president, not a king.
But the legality of his actions is not the only criterion by which he will be judged. Prudence in the end will matter as much as legality, or more. Here is where the standard that Lincoln set matters. For Lincoln displayed, in the Fort Sumter crisis, not merely the skill of a great lawyer, but the exquisite judgment and finesse of the great statesman. Trump could follow his example and maintain a modest, defensive mission for the military. He could use the political space provided by a deferential judiciary either to allow cooler heads among the protesters to prevail or to let their actions make clear to the American people who really fired the first shot.
John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert J. Delahunty is a fellow at the Claremont Institute’s Center for the American Way of Life.