Overturned - Trump's use of 10 U.S.C. § 12406 to commandeer California National Guard ruled illegal and subject of federal restraining order


At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith [...] federal overreach risks instigating the very behavior that the federal government fears. To put a finer point on it, the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention. [...] President Trump’s June 7 Memo marks the first time that a President has invoked § 12406, lawfully or not, against the wishes of a state governor. Regardless of the outcome of this case or any other, that alone threatens serious injury to the constitutional balance of power between the federal and state governments, and it sets a dangerous precedent for future domestic military activity. There is a reason that § 12406 and other similar statutes, such as the Insurrection Act, apply only in the narrowest and most extreme of circumstances—they jeopardize the delicate federalism that forms the basis of our very system of government.
Of course, Hegseth has stated he will ignore any ruling that doesn't come from the Supreme Court itself (which, of course, is not how these things work; ask the Navy about its sonar use, after the Ninth Circuit's decision in Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125 (9th Cir. 2016))...



“We should not have local judges determining foreign policy or national security policy for the country.”
🤬 Checks? Balances? Coequal branches? Article III?
And it's not like it's an edge interpretation here. From the ruling (ECF No. 64, pp. 24-25):
Congress amended the Act to require that any orders issued under § 12406 be issued “through the governor of the respective State … from which State … such troops may be called.” Militia Act of 1908, Pub. L. No. 60-145, § 3, 35 Stat. 399, 400. Section 12406 maintains this requirement: “Orders for these purposes shall be issued through the governors of the States … .”
[...]
Defendants assert that they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” Opp. at 17. True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders “shall be issued through the governors.” See Militia Act of 1908 § 3.
Meanwhile, Trump's bloviating on social media seems to be biting him a bit: “Of course, federal officials do not only act through official documents. President Trump reportedly wrote on social media that he had directed his cabinet officials to “take any actions necessary to ‘liberate Los Angeles from the Migrant Invasion,’” and said, “we’re going to have troops everywhere,” which certainly differs from the circumscribed role professed...”
 
Edit: The Ninth Circuit immediately put in place an administrative stay and now has frozen that stay for the foreseeable future, upheld Trump’s use of 12406, but at least concluded that (while deference will be given), use of the act by a President is judicially reviewable. Sigh. https://storage.courtlistener.com/recap/gov.uscourts.ca9.4e2731d4-cbd8-4803-a59f-a1d0c6023daf/gov.uscourts.ca9.4e2731d4-cbd8-4803-a59f-a1d0c6023daf.32.0.pdf 

Comments

Post a Comment