A(nother) Big L for Newsom

Newsom's victory lap after a Clinton judge upheld his lawsuit against President Trump last week looks even more buffoonish after a California appellate court just took another stab at his ego.

If Gavin Newsom had hoped a court battle against President Trump would boost his 2028 presidential prospects, the well-coiffed California governor needs a new campaign strategy.

In swift fashion, a California appellate court not only reversed for now a lower court judge who sided with Newsom’s lawsuit against the president for deploying the National Guard to Los Angeles earlier this month but also detailed the violence that occurred on Newsom’s watch. Further, the three-judge panel—two Trump appointees and one Biden appointee—concluded Trump acted within the scope of a federal statute that empowers the president to federalize and deploy the guard and that “governors [do not have] any veto power over the President’s federalization decision.”

The unanimous ruling is a black eye for both Newsom and Judge Charles Breyer, the 83-year-old brother of former Supreme Court Justice Stephen Breyer, who last week overturned the president’s National Guard deployment and “return[ed] control” of the guard to Newsom. Breyer downplayed the rioters’ attacks against federal buildings and law enforcement over a two-day period—”there can be no debate that most protesters demonstrated peacefully,” Breyer, reminiscent of MSNBC reporting of the George Floyd riots in 2020, claimed—and concluded the president had not met the requirements of the statute.

Breyer, appointed by Bill Clinton in 1997, even disputed the president’s determination the rioting represented a “rebellion,” insisting any legit rebellion must be “armed,” “organized,” and “against the government as a whole…rather than in opposition to a single law or issue.”

“His actions were illegal,” Breyer said of the president’s use of the National Guard to contain the escalating violence and protect federal officers and property.

That’s Gonna Leave a Mark

But his colleagues on the Ninth Circuit disagree. “[We] conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), [the enabling statute] which authorizes federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,’” Judges Mark Bennett, Eric Miller, and Jennifer Sung wrote in a 38-page opinion issued just two days after they held oral arguments.

Unlike Breyer, the appellate judges emphasized the violent actions of the rioters that justified the president’s involvement:

“[On] June 7, protesters continued to interfere with federal enforcement operations by a Homeland Security Investigations Office in Paramount, California, and continued to damage federal property. In a confrontation that lasted over seven hours, the protesters blocked traffic and used shopping carts to barricade the street. Some attacked ERO and Customs and Border Patrol (CBP) officers by ‘box[ing] in’ the officers and ‘throwing mortar-style fireworks with multiple explosions’ at them. Other protesters ‘engage[d] in dangerous behavior such as throwing rocks and other objects, including a Molotov Cocktail at deputies,’ ‘burning a vehicle,’ and ‘vandalizing property.’ One ERO officer was trapped in her law enforcement vehicle while protesters surrounded it, violently pounded and shook it, and threw stones at it. One CBP officer suffered a shattered wrist caused by a thrown object. Protesters also damaged the perimeter fence of a federal building and three government vehicles.”

The trio said it is “an undisputed fact that federal property has been damaged and federal employees have been injured.”

So much for “peaceful,” Judge Breyer!

Possible Impact on Other Trump Cases

While the judges did conclude that the president’s authority is rooted in the statute and not the Constitution—a point of dispute with the Trump Department of Justice— the court also walked a fine line related to judicial involvement in the matter.

“We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review. Nonetheless, we are persuaded that, under longstanding precedent…our review of that decision must be highly deferential [to the president]. Under a highly deferential standard of review, Defendants have presented facts to allow us to conclude that the President had a colorable basis for invoking § 12406(3).”

This is noteworthy because similar issues have been raised in litigation seeking to ban the president’s use of the Alien Enemies Act (AEA). In fact, AEA cases were cited by Breyer and the appellate court as recent examples of unsettled questions about the role of the courts in what appears to be sole presidential authority. (Breyer claimed the president’s opposition to court order halting his policy is an attempt to “skirt judicial review.”) AEA lawsuits are advancing despite, as I wrote here, a near-universal acknowledgement that the judiciary has a very “limited” role in second-guessing the president.

Newsom had also argued that stationing National Guardsmen at federal facilities interfered with their ability to perform other duties such as fighting wildfires (ha) and stopping drug smuggling (double ha) and could lead to more rioting. “We do not know whether future protests will grow due to the deployment of the National Guard.”

Newsom, the ultimate spin master, quickly posted a message claiming his fight will go on:

Breyer, in fact, held a hearing Friday morning on Newsom’s request for a preliminary injunction to replace the now halted temporary restraining order.

Newsom may try to keep this lawsuit alive but considering he did not win support from a newly-appointed Biden judge, his prospects of ultimately succeeding are slim to none. Regardless, the president now can bask in a decisive victory over one of his most vocal foes.