Washington — A federal judge on Thursday wrestled with whether to temporarily restrict President Trump’s use of National Guard troops and U.S. Marines to assist with federal immigration enforcement in Los Angeles, pressing the Justice Department about the president’s authority to federalize National Guard members in response to civil unrest.
The hearing in San Francisco marks the first test of Mr. Trump’s decision to place more than 4,000 members of the California National Guard under federal control and send 700 active-duty Marines to Los Angeles to protect Immigration and Customs Enforcement agents as they conduct immigration arrests.
The Trump administration’s immigration crackdown sparked protests in California’s largest city, which the president said in a June 7 memorandum constitutes “a form of rebellion against” the U.S. that allowed him to call up the National Guard under Title 10. Since the president deployed the National Guard to Los Angeles, protests have popped up in a number of other cities, including Austin, Boston and New York City.
Los Angeles Mayor Karen Bass imposed an 8 p.m. curfew on Tuesday and Wednesday. The Los Angeles Police Department said there have been at least 400 arrests since Saturday stemming from protests and other criminal activity in the downtown area.
U.S. District Judge Charles Breyer did not issue a decision from the bench, but instead told lawyers for California and the Justice Department that he would rule soon. He indicated that an order will likely only address the president’s decision to deploy the National Guard and suggested that concerns about the potential actions of the Marines who have been sent to Los Angeles are so far speculative.
Still, Breyer at times appeared uncomfortable with the assertion from Justice Department lawyer Brett Shumate that courts cannot review whether Mr. Trump’s decision to call in the National Guard complies with Title 10.
“It’s not that a leader can simply say something and it becomes it,” he said. “How is that any different than what a monarchist does?”
The judge continued: “This country was founded in response to a monarchy and the Constitution is a document of limitations … and an enunciation of rights.”
Title 10 lays out three circumstances under which the National Guard can be called into federal service: when the U.S. is invaded or in danger of invasion by a foreign nation; when there is a rebellion or danger of a rebellion against the authority of the U.S.; or when the president is unable with the regular forces to execute the laws.
The measure then states that the president “may call into federal service members and units of the National Guard of any state in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.” It says orders “shall be issued through” the governor.
Breyer indicated that the structure of the law undercuts the Justice Department’s assertion that Title 10 gives the president complete discretion and allows him to bypass California Gov. Gavin Newsom, who is the commander-in-chief of the state’s National Guard.
“My point is if it were read the way the government has urged me to read it, it would’ve been rewritten entirely differently,” he said.
Shumate, meanwhile, argued that there is one commander-in-chief of the Armed Forces, the president, and when he makes a decision, states are “subservient” to it. He described Newsom as a “conduit” who cannot countermand the president’s orders.
Mr. Trump has argued that the military had to be sent into Los Angeles to protect ICE and other federal employees performing their duties, as well as government property. But the decision has escalated tensions with Newsom, a Democrat, who claimed the presence of the military in city streets threatened to destabilize the community and lead to an escalation.
Newsom’s lawsuit
Newsom sued the Trump administration over the president’s move and asked Breyer, who is presiding over the case, for early intervention Tuesday.
The governor argued that Mr. Trump “unlawfully bypassed” him when the president called the National Guard into service without his permission and said the federal law invoked by Mr. Trump to deploy the troops — Title 10 — does not give him the authority to do so under the current circumstances.
Newsom had asked Breyer, appointed by President Bill Clinton, to temporarily limit troops to providing indirect assistance to federal officials by protecting immigration detention facilities or other federal buildings, or defending government employees at risk of physical harm. California officials want the judge to block the military from assisting in law-enforcement functions such as executing warrants, arrests, searches or checkpoints.
“These unlawful deployments have already proven to be a deeply inflammatory and unnecessary provocation, anathema to our laws limiting the use [of] federal forces for law enforcement, rather than a means of restoring calm,” California Attorney General Rob Bonta wrote in a filing. “Federal antagonization, through the presence of soldiers in the streets, has already caused real and irreparable damage to the city of Los Angeles, the people who live there, and the State of California. They must be stopped, immediately.”
Breyer declined to immediately grant California officials relief and instead set a hearing for Thursday afternoon to consider the request.
Nicholas Green, a lawyer with the state of California, said Mr. Trump’s move to deploy the National Guard to Los Angeles marks an “expansive, dangerous conception of federal executive power.” He said that the governor’s office had received information that 140 Marines will replace and relieve National Guard members in Los Angeles within the next 24 hours.
In a filing submitted to the court, the Trump administration called Newsom’s request for relief a “crass political stunt endangering American lives.”
“There is no rioters’ veto to enforcement of federal law. And the president has every right under the Constitution and by statute to call forth the National Guard and Marines to quell lawless violence directed against enforcement of federal law,” Justice Department lawyers wrote.
During testimony on Capitol Hill, Defense Secretary Pete Hegseth was asked whether he would abide by the judge’s decision on the president’s use of military forces in Los Angeles in response to the protests. Hegseth declined to definitively say and instead criticized federal judges.
“We’ve always looked at the decisions of the court,” he said, adding “we should not have local judges determining foreign policy or national security policy for the country.”
Military officials have said that the Marines on the ground in Los Angeles do not have the authority to arrest people and are there to protect federal property and personnel. U.S. law prohibits the use of active-duty military for domestic law enforcement purposes unless the president invokes the Insurrection Act.
Mr. Trump suggested earlier this week that he would use the law, which dates back to 1792, “if there’s an insurrection.”
As of Wednesday, roughly 2,800 National Guard and Marines are serving under the command of Task Force 51 and have been trained in de-escalation, crowd control and standing rules for the use of force, according to U.S. Northern Command. There are an additional 2,000 to-be-identified National Guardsmen under federal command, according to the Defense Department.
The task force’s mission is to protect federal personnel and property in the greater Los Angeles-area, and members have accompanied ICE on missions, according to U.S. Northern Command. It said the forces do not conduct civilian law enforcement functions, but can temporarily detain a person in “specific circumstances,” such as to stop an assault or prevent interference with federal personnel performing their duties.
“They protect; they don’t participate,” it said in a statement Wednesday.
Homeland Security Secretary Kristi Noem said during a news conference in Los Angeles that immigration authorities have “tens of thousands of targets,” but declined to say how many migrants have been arrested. Two officials with the Department of Homeland Security confirmed to CBS News on Wednesday that 330 migrants who are in the U.S. unlawfully have been arrested in Los Angeles since Friday, and 113 of them had prior criminal convictions.