Brett Shumate (00:00):
… it's the authority of the United States that rendered him unable to execute federal laws. Yet, the District Court improperly second guessed the President's judgment about the need to call up the guard in order to protect federal property and personnel from mob violence in Los Angeles.
Judge Eric Miller (00:16):
Mr. Shumate-
Judge Mark Bennett (00:18):
And so, I want to start by drilling down on one aspect of our standard of review, and I'm going to be discussing Subsection (3) only of Section 12406. And you just said the President acted well within his discretion. And again, just as to section (3), is it the United States' position that the Court has no role at all in reviewing what the President has done in calling forth the militia under Subsection (3)? Or is it the United States' view that the Court has a limited role and needs to afford the president very substantial deference? Or is it something else, in deciding whether the requirements of Subsection (3) and ability with the regular forces to execute the laws is met?
Brett Shumate (01:32):
Thank you, your Honor. Our view is that the statute commits the decision whether to call up the forces to the President's unreviewable discretion. So no, there's no role for the Court to play in reviewing that decision. And I think it's important to note that the statute here is very similar to the statute at issue in the Martin case that we've cited, the act of 1795, which had a similar structure, it had the whenever clause followed by a delegation to the President to call up the militia. And in that case, the Supreme Court in 1830 said, that's a decision that's committed to the President's discretion. It's not for a court to review that decision. The plaintiffs try to make out that decision as an outlier, but of course, there have been many cases since then involving unreviewable decisions committed to the executive, the last we cited is the Dalton case.
Judge Eric Miller (02:21):
[inaudible 00:02:23].
Judge Mark Bennett (02:24):
Is it your view that if the President or future president simply invokes the statute, gives no reasons for doing it, provides no support for doing it, and there is nothing which would appear to a court to justify it, that the Court still has no role, at all, in determining whether the President, this hypothetical future president, correctly invoked Subsection (3)? No role at all, even if the President gives no reasons and there are no facts offered by that president to support that president's decision.
Brett Shumate (03:08):
That's correct. Because if the statute is unreviewable, it's unreviewable. And I would point the Court to the last section of the decision in Dalton where the Supreme Court recognized, yes, Marbury V. Madison says the Court decides what the law is, but it also respects that principle when a court recognizes that when a statute is delegating broad discretion to the President, that respecting that also is a judgment that a court should respect. It respects the separation of powers when Congress delegates that decision to the President. But I think, your Honor, you're speculating about harder cases down the road, this is an easier case because there are facts in the record here that strongly support the President's decision that there was a rebellion and that the President was unable to execute federal laws under the third problem that we're focused on here today.
Judge Eric Miller (03:55):
And what if… I mean, would your answer to Judge Bennett's question be the same if in the hypothetical the President articulated a justification for his action that was not one of the enumerated purposes in 12406?
Brett Shumate (04:13):
Again, I think I would give you the same answer, your Honor, that if it's unreviewable, it's unreviewable. The Martin case also acknowledged, yes, there can be cases where discretion can be abused, but in that situation, there are other checks in the President through the political process. It's not for a court to exceed its authority, just because there may be hypothetical cases in the future where the President may abuse his authority. President hasn't done that here as we…
Judge Mark Bennett (04:39):
No, go ahead, sorry.
Judge Eric Miller (04:41):
Suppose that we don't agree that the question is completely unreviewable, what does it mean for the President to be unable with regular forces to execute the laws?
Brett Shumate (04:53):
It means in his judgment, the regular forces on the ground in Los Angeles aren't adequate and sufficient for him and his judgment under the Take Care clause of the Constitution to carry out the laws and enforce the laws. And in here, I think the Santa Cruz declarations make that pretty clear, Paragraph seven, for example, talks about specific immigration enforcement actions that were unable to be accomplished because of the mild violence preventing ICE officers in Los Angeles from carrying out those actions. But the [inaudible 00:05:23].
Judge Eric Miller (05:23):
I mean, in the normal course, the level of resistance encountered by federal law enforcement officers is not zero, right? You go to arrest people and sometimes they don't want to be arrested and they run away or even resort to violence and sometimes they get away. So does that mean that the President every day is unable to execute the laws and he could invoke this whenever?
Brett Shumate (05:54):
Well, I think let's remember, the President also takes an oath to support and defend the Constitution. He has an obligation to take care of that the laws are faithfully executed. And I would point the Court to the language about the regular forces, right? That I think provides some guidance to the President about, look, if regular forces are capable of addressing the one-off situation where there's resistance to federal authority, there's no need to invoke this statute. But what we have here is a documented record of sustained ongoing mob violence continuing through this past weekend. And the supplemental declaration that we filed that explained there were 1000 violent protesters this past weekend outside the federal buildings, and it required the National Guard, they were essential to protect that building from the breaches that had occurred the prior weekend. So [inaudible 00:06:40]-
Judge Mark Bennett (06:40):
So is the United States still arguing that this case is governed by the political question doctrine?
Brett Shumate (06:48):
I think that's an alternative argument. The argument we're pressing today and in our motions papers are the Dalton and Martin line of cases that this statute confers unreviewable discretion on the President.
Judge Mark Bennett (07:01):
Well, with regard to your alternative argument about the political question doctrine, are you aware of any Supreme Court or Court of Appeals case in which the political question doctrine has been applied to a claim alleging that the executive branch violated a statute?
Brett Shumate (07:18):
I don't know off the top of my head, Your Honor. Again, the argument that we're pressing today is based on Dalton and Martin, that the statute here confers unreviewable discretion on the President. At least for purposes of this motion, we're not pressing the political question doctrine.
Judge Mark Bennett (07:38):
Right. Are you familiar with the 1932 Supreme Court case of Sterling versus Constantin?
Brett Shumate (07:46):
I'm not familiar with that case, Your Honor.
Judge Mark Bennett (07:48):
All right. I would just note that in that case, in discussing this power of the President and prior cases, the Court said the nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force and restoring order. And I'm not going to ask you further about the case since you're not familiar with it, but I take it the United States' position, again, an answer to Judge Miller's question is, even if we reject your view that it's absolutely unreviewable within the language I just read, it's the United States' view that the facts here fit comfortably within that language.
Brett Shumate (08:32):
I think that's right, Your Honor. Again, so even assuming this is not a political question and that this is something that wouldn't fall within that line of cases, there is this line of cases Dalton, Martin, involving statutes that delegate broad discretion to the President, there's a long history of courts not reviewing the President's discretionary decisions. And I would point to the language of this particular statute, it says, "The President may call into federal service members and units that he deems necessary." So that is an express delegation of Congress's power to call up the militia to the President.
Judge Mark Bennett (09:04):
It's in such numbers as he considers necessary, right?
Brett Shumate (09:09):
Correct. So the president has the discretion to decide what level of forces are necessary to counter the threat. And the threat is in the last phrase of that first sentence necessary to repel the invasion, suppress the rebellion, or execute those laws. And in the President's judgment, 2000 National Guardsmen from California are necessary to execute the laws in California, and the record bears that out. Based on the fact that we have declarants from ICE explaining that the National Guardsmen are essential right now to protect the federal buildings from additional breaches and violent rioting involving fireworks, Molotov cocktails, concrete chunks being thrown at ICE officers who were simply trying to prevent individuals from interfering with enforcement operations and trying to breach the buildings.
Judge Eric Miller (10:00):
So suppose that we had a hypothetical where suppose there was no violence, no organized opposition at all, everything is calm in Los Angeles and the President says, I've decided that there is a numerical target for the number of removals I would like to have, and with the number of ICE officers that I'm able to hire using the funds that Congress has appropriated, I can't hit that target. Therefore, I find that I'm unable to execute the laws, and so I need to call up the National Guard under Section 6. Setting aside, I understand your first line argument that the judgment is completely unreviewable. Do you think that would meet the definition of unable to execute the laws?
Brett Shumate (10:51):
It certainly could be. Again, it would fall within the President's discretion based on the facts available to him. If we're in a world where this is not reviewable, then that would be a decision that the President could make. And if it's an abuse of that authority, there are measures to, or means by which the other branches, Congress can check that decision. But I think the conditions also suggest some type of intervening event rather than an election, right? Like an invasion in the first prong suggests there is some type of activity that interferes with the security of the United States, the second prong or rebellion that rises up. The third prong, some external force or activity that requires the President to act, not an election. But again, I think that would be within the [inaudible 00:11:35]-
Judge Eric Miller (11:35):
Mere dissatisfaction with the level of the regular forces that Congress had provided would not be enough under that definition?
Brett Shumate (11:47):
Well, I wouldn't want to concede that, Your Honor, I think that would be the President's decision based on all the facts available to him. And the record may support it in a particular case, but obviously that's not what happened in this case, the President at his [inaudible 00:12:00]-
Judge Mark Bennett (12:00):
So Counsel, let me ask a question based on Judge Miller's hypothetical. But let's take a look at the facts that Judge Miller posited and let's say that the problem was limited to California, that there was nothing to suggest that the problem was beyond California. In your view, if a hypothetical future president made the decision to call up in response the militia of every state and the District of Columbia, so 51 militia, would it also be your view that that decision by this hypothetical future president would be entirely unreviewable?
Brett Shumate (12:49):
Yes, because the statute says, "The President may call into federal service members and units of the guard of any state in such numbers that he considers necessary." That is an expressed allegation that couldn't be any more clear that the President gets to decide how many forces are necessary to quell the rebellion to execute federal laws. But again, bringing you back to this case, of course, that's not what he did in this case, he only called up 2000 National Guardsmen. The Secretary of Defense thought it was necessary to call up an additional 2000. And the facts on the ground have justified that decision, those Guardsmen are necessary on the ground today to prevent breaches of the federal buildings, to protect ICE officers when they are conducting their law enforcement operations. The Guardsmen are not conducting law enforcement, they're charged with a protective mission, not a law enforcement mission.
(13:40)
I'm happy to talk further about the conditions, but I'd also like to talk about the second issue that the District Court focused on, which was whether the Secretary of Defense committed a technical violation of the statute by not issuing the orders through the California Governor. As you know, the District Court found that the Secretary of Defense committed a procedural foot fault by not issuing the orders through the California Governor. But under the statute, the Governor is merely a conduit, not a roadblock or a co-executive when the President decides that it's necessary to call up the guard.
(14:17)
And in this case, the Secretary of Defense complied with Title 10 by issuing the orders through the Governor via the Adjutant General in California, who is the Governor's chief of staff for these purposes, and is delegated authority under California law to issue orders in the name of the governor. And I think the facts bear out that that was the right decision and the right procedure to follow because the California Adjutant General followed the order, forwarded the order to Governor Newsom, and the order was complied with. The whole point of this element of the statute is to ensure that there's a smooth handoff in the forces from the state…
Judge Mark Bennett (14:52):
Counsel, I'm going to ask a variant of this question to your friend when it's his turn, but do you read in the District Court's order on this point, a definitive statement of what it was that the Secretary should have done to comply with this supposed requirement that obviously the District Court found that sending it to the Adjutant wasn't sufficient? But do you see how does the United States interpret the order in terms of the specificity of this wasn't enough? How does the United States interpret the order of what would've been enough to comply with this?
Brett Shumate (15:41):
I think it's unclear. It's unclear whether he meant that we should have copied Governor Newsom on the email, but he didn't say that. But he agreed with us that… And disagreed with California that the statute does not contain an approval requirement or a consultation requirement. But at the end of the day, I think that's what the District Court imposed by saying, you can't issue it through the Adjutant, you got to issue it through the Governor Newsom. In which case, what's the point? Right? We're going to get to the same place because the Governor has no discretion under the second prong of the element sentence of the statute, he shall issue the orders. So even if we sent that email to Governor Newsom, we get to the same place, he would be required to send that order to the Adjutant and we'd be in the exact same place today.
Judge Mark Bennett (16:28):
I understand the United States' argument, there was no technical violation here, but even if there were a technical violation, the remedy imposed by the District Court was all out of proportion to the supposed wrong.
Brett Shumate (16:43):
Exactly. Right. So at the District Court hearing, we even asked the District Court, if you think there's a technical violation of the statute, give us a chance to cure, right? We'll send the right email. Whatever you think we need to do, we can do that. The District Court did not give us that opportunity. Instead, the Court issued an extraordinary injunction that basically vacated the President's decision, orders him to reverse his order and surrender control over portion of the armed forces back to the California Governor, that is an extraordinary order and remedy, wholly out of proportion. And under the Winter case, really… The equities here are totally imbalanced, for all the reasons we've explained in our declarations, given the mild violence and [inaudible 00:17:24], that if this order goes into effect, it will be putting lives at risk and federal property at risk as well.
Judge Mark Bennett (17:32):
So counsel, you may not know the answer to this question, and it may not be in the record, but I'm asking about sort of current conditions. As the United States has pointed out, the proposed order that the state asked the District Court to impose says in it that the order doesn't prohibit the force from providing indirect
Judge Mark Bennett (18:00):
… and direct assistance to federal officials, protecting federal property, defending federal officials or employees from threatened physical harm, et cetera. Right now, are the forces doing materially more than what was in that carve out that the state had proposed?
Brett Shumate (18:21):
Yes, Your Honor. And I think that's clear from both the NEL declaration and the supplemental declaration from General Sherman that we submitted. Just with our reply brief, it explains, not only are the guardsmen protecting the perimeter of the federal buildings, but also performing an escort function when ICE agents go outside of the federal buildings. They're setting up a perimeter so those officers aren't assaulted by mobs when they're trying to enforce federal immigration laws. So even that proposed order would've been an extraordinary intrusion as well.
Judge Mark Bennett (18:53):
Or even if that proposed order had been entered, the United States would as of now be doing things that would've been barred by that order?
Brett Shumate (19:03):
Yes.
Judge Mark Bennett (19:04):
Okay. Thank you.
Judge Eric Miller (19:08):
In your view, is there any issue under the Posse Comitatus Act before us in the current posture of this case?
Brett Shumate (19:17):
No, Your Honor. The District Court ruled for us on that issue at this stage. In the TRO opinion, I don't understand the state to resurrect that argument for purposes of the stay. I'm happy to address it, but the point that we made in District Court was that there is no violation of the Posse Comitatus Act. The orders are very clear, that the Guardsmen and the Marines are engaged in a protective mission that falls within the President's inherent power. They're not engaged in direct law enforcement. And I think the declarations from NEL [inaudible 00:19:49] and the other general that we submitted made clear that the Guardsmen and the Marines are carrying out those orders faithfully, consistent with the statute.
Judge Eric Miller (19:59):
But your view is that there's no need even for us to say that much, because the issue just isn't here?
Brett Shumate (20:05):
Yeah, that's correct.
Judge Mark Bennett (20:07):
Counsel, and I know we've asked a lot of questions, did you want to briefly address, or however long you want to address the 10th Amendment issue?
Brett Shumate (20:16):
Your Honor, I don't think there's much to say, because I think it's completely derivative of the statutory question. I think the District Court ultimately recognized that at the end of that portion of his opinion, I think the state recognizes that as well. If the President acted consistent with the statute here, then he's acting consistent with the Constitution, because the militia clauses authorize Congress to delegate to the President the authority to call up the guard. If he permissibly called up the guard, of course, there's no 10th Amendment problem here.
Judge Mark Bennett (20:43):
Yeah, I read the District Court's order as I believe you do, where the District Court explicitly recognized that if the District Court had gotten it wrong on the President's authority to call up the Guard, that the 10th Amendment calculus would be materially different, and might well weigh in the President's favor.
Brett Shumate (21:04):
I think that's right. There's no 10th Amendment issue here if the President is acting consistent with the statute. I'm happy to answer any further questions. If the Court has no other questions, I'd like to talk about the situation on the ground in Los Angeles today, and walk the Court through some of our declarations, unless the Court has any other questions on those statutory issues.
Judge Mark Bennett (21:26):
I'm fine with your doing that. And I know Judge Miller and Judge Sung will ask questions if they feel it appropriate. But I'm fine with your attorney to that.
Brett Shumate (21:37):
Thank you, Your Honor. I just want to emphasize how crucial the Santa Cruz declarations are. The first one is at page 235 of the Addendum. The second declaration is attached to our reply brief, and it explains the danger right now on the ground in Los Angeles to federal officers, and property from the mob violence and disorder. Paragraph 7 of that declaration, the original one explains how a violent mob tried to prevent ICE officers from conducting immigration enforcement operations in Los Angeles on Friday, June 6th, immediately prior to the President's invocation of this statute. Paragraphs 9 through 17 then go on to explain an extremely dangerous situation, involving violent and riotous demonstrators threatening to breach the federal building in Los Angeles, that evening where ICE was detaining illegal aliens, and federal officers were pinned down and severely outnumbered. It also explains how federal officers had to hold the building by themselves because it took over an hour and a half for local authorities to provide support and assistance to the federal officers.
(22:39)
Paragraphs 18 through 20 describe what happened Saturday, June 7th, the day the President issued the order. Seven hours of constant fighting nonstop between ICE agents and a violent crowd that disrupted an immigration enforcement operation plan for that day. One officer was trapped inside her vehicle, another shattered his or her wrist, because of concrete blocks that are being thrown, mortar-style fireworks. Paragraph 33 of that declaration, I think is essential here. It concludes, "I believe the safety of local federal facilities, and the safety of those conducting immigration enforcement operations in this area of responsibility requires additional manpower and resources." That was a week ago. The supplemental declaration confirms the situation on the ground has not changed. There's still ongoing violence, and an extraordinary need for the Guard in Los Angeles. Even today. Paragraph 4 explains that the federal building in Los Angeles, the one that had been breached the week before, has still been closed since June 9th, and again concludes that the guard is essential to protecting that property.
(23:48)
Paragraph 6, I think is also crucial. It explains that there are continuing violent protests at federal facilities throughout Los Angeles, including this past weekend. June 14th, there were a thousand people assaulting law enforcement, a violent mob,, with rocks, bricks, fireworks, an extraordinary scene. And that declaration concludes in paragraph 7 through 14, that the Guard is essential to continuing to safely enforce immigration laws in protecting federal buildings in Los Angeles. I would just commend to the Court, it is essential that this injunction be stayed, otherwise lives and property will be at risk, if the Court has no other question.
Judge Mark Bennett (24:25):
All right. Do you want to reserve the remainder of your time?
Brett Shumate (24:27):
Yes. Thank you, Your Honor.
Judge Mark Bennett (24:29):
All right. We'll now hear for the attorney for the governor and the state of California.
Samuel Thomas Harbourt (24:40):
Good afternoon, Your Honors, and may it please the Court. Samuel Harbourt on behalf of the Governor and State of California. Defendants motion for a state pending appeal should be denied. The framers of our constitution gave Congress the authority to enact statutes governing when the President may call forth a state's National Guard into federal service. The only statute invoked here, 10 USC Section 12406 requires that one of three factual predicates exist before that authority may be exercised and requires that the federalization order be issued through the governor. But on June 7th, for the first time in our nation's history, defendants federalize thousands of members of the State National Guard in circumstances where none of those factual predicates exist, and they circumvented the governor who did not receive the order, and who certainly did not issue it. For those reasons, the District Court rightly held that the state is likely to prevail in showing that these actions exceeded the proper bounds of executive authority in each of the equitable factors councils strongly against a state pending appeal, which would allow defendants to prolong this unprecedented, unlawful executive action.
(25:53)
To be sure, Los Angeles has seen certain episodes of unrest and even violence in recent days, including violence directed at state and local law enforcement officials. The state has strongly condemned these acts, and it has responded forcefully to them. And I would appreciate the opportunity at some point in my time this afternoon to respond to the suggestion from the other side that the state has been unwilling or unable to respond. A state pending appeal would profoundly injure the state of California and our nation more generally. It would allow defendants to continue diverting thousands of guardsmen away from critical work at the state level, including wildfire prevention and drug interdiction. It would allow defendants to further escalate tensions and the risk of violence in the city of Los Angeles, and it would defy our constitutional traditions of preserving state sovereignty, of providing judicial review for the legality of executive action, of safeguarding our cherished rights to political protest. And if keeping the military-
Judge Mark Bennett (27:00):
Counsel, I want to start with one part of the District Court's order. And as I read the District Court's order on page 23 of the order, I believe it's denominated A283 in the record. I read the District Court's order as saying that as long as the President can in some way or manner execute the laws of the United States, that Subsection 3/12406 isn't met. That although there's no numbers in there, it suggests that if the President can 50% execute the laws, or 70%, or 80%, or maybe even 15%, this isn't met. And that what is required is that the President be wholly unable to execute the laws of the United States for him to be able to invoke the statute. So my first question is, am I reading the District Court's order right? If I'm not, please tell me where I'm wrong. And if I am reading it right, does California agree with the District Court's reading of the statute?
Samuel Thomas Harbourt (28:19):
Your Honor, I'm not sure that the District Court's analysis there needs to be read so expansively, and the state is certainly not asking the Court to adopt that interpretation of prong three. All we're asking the Court to conclude, at least at this very early stage of the litigation, is at a bare minimum, for prong three of the statute to exert any meaningful limit on executive authority in this area, it has to mean more than what defendants are suggesting. It has to at least mean that the President comes forward with some attempted justification, or at least an attempt to exhaust or at least contemplate more modest alternatives than immediately reaching for the most-
Judge Mark Bennett (29:05):
But going back to a case that the United States cites, Martin V. Mott, one of the things the Court said in that case is, we are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. And the Court was including itself in the all other persons. Even if we were to agree with you that there is some limited role of judicial review, with the facts here and the language in Martin V. Mott, how can that test be met here by the state, to justify an injunction against the President's actions?
Samuel Thomas Harbourt (30:01):
Your Honor, I'd like to respond to Martin, and then also explain why the state believes that modern language of Section 12406 can't support that highly deferential, essentially unchecked view of authority under the third prong of the statute that the government is advancing here. So as to Martin, it was a very different case that involved a determination of a foreign invasion. It was also decided many years ago, well before the emergence of modern political question doctrine cases like Zivotofsky, which say that when a Court is addressing a core legal issue like interpretation of a statute as here or the constitution, that is a core exercise of judicial review. It's something that courts have a virtually unflagging obligation to do when they have jurisdiction.
(30:49)
And I would add as to Martin, Your Honor, the government has been making a very similar argument based on that case in the Alien Enemies Act context across the country. And as far as I'm aware, courts have uniformly rejected the government's very similar argument invoking Martin in that context, which involves the Alien Enemies Act, which implicates at least something closer to the types of foreign policy or national security considerations that have traditionally led courts not to deem cases justiciable.
Judge Mark Bennett (31:21):
So if we were to agree with you, that there is some judicial review here, how much discretion, if any, does California believe the President's judgment, that this is necessary for him to comply with the Take Care clause, and to take care that the laws be faithfully executed? How much discretion does he have in California's view, under this statute in deciding when to federalize?
Samuel Thomas Harbourt (31:49):
Your Honor, two answers. So I do think looking at the text of Section 12406, it's important to recognize that this statute illustrates, Congress knows how to accord substantial discretion to the President when it wants to do so, because it does accord that type of discretion after a Federalization decision has been properly made consistent with the factual predicates, in terms of the numbers of troops that the President deems appropriate to respond to the situation that justified federalization. You don't see that language in the factual predicates, justifying the initial Federalization decision. And it's an established feature of statutory interpretation that when Congress uses language in one part of the statute but omits it in another, courts presume that the omission is intentional. Now-
Judge Sung (32:37):
Counsel, if we were-
Judge Mark Bennett (32:39):
Counsel, does that mean we were… I'm sorry, go ahead. Sorry, Judge Sung.
Judge Sung (32:42):
If we were writing on a blank slate, I would tend to agree with you. But the problem that I see for you is that Mott seemed to be dealing with very similar phrasing about whenever there is an invasion, then the President has discretion. And it seemingly rejected the exact argument that you're making, and seemed to broadly hold that even with that turn of phrase and that structure of the sentence, Congress was essentially giving the President the exclusive authority to determine whether the exigency existed. So how do you deal with that?
Samuel Thomas Harbourt (33:23):
Your Honor, two very important distinctions with Mott. The first is one I mentioned a moment ago, which is the determination about a foreign invasion implicates sensitive foreign policy.
Judge Sung (33:35):
Right. I understand the factual difference, but what I'm asking for you to address is the textual similarity.
Samuel Thomas Harbourt (33:40):
The textual similarity, as we understand Martin, the approach that the Court took there was not based on that particular language in the statute. It was based on the sensitive considerations involved in foreign policy. And it was a very different context, because there you had a plaintiff who was a member of the state militia, a low-ranking member of the military objecting to a command coming from on high. And courts throughout our history have been reluctant to directly intervene in the chain of command in that manner.
(34:13)
But in terms of, Judge Bennett, to get back to the second aspect of your question about whether we see room for any deference or discretion to the President here, we don't have a problem with according the President, some level of appropriate deference based upon his experience implementing federal law. The problem as we see it, is that there's really nothing to defer to here because the President has not even attempted, defendants have made no attempt whatsoever to provide argument or evidence that they even contemplated more modest measures to the extreme response of calling in the National Guard and militarizing the situation. And so our argument-
Judge Eric Miller (34:53):
And can I ask you… Sorry, can I ask you to go back to the first part of this answer where you were responding to Judge Sung, and distinguishing Mott on the ground that it involves a foreign invasion, and militia men rather than somebody else challenging it. And I agree those are both factual differences, but how do you deal with Luther against Borden not very long after Mott? It seems to have read the opinion in a way that didn't attach significance to either of those distinctions. Luther was not a foreign case, was not about somebody in the chain of command. And there, the Court read it for this fairly broad preclusion of review, of the President's decisions about when to call forth the militia. So what do we do with that?
Samuel Thomas Harbourt (35:46):
Your Honor, I think that the court sitting today in 2025 should be quite cautious about relying on older authorities in this area, given the shifts over the years in the political question doctrine, justiciability doctrines,
Samuel Thomas Harbourt (36:00):
But also given the historical development of the strong norm in this country against military involvement in civilian affairs. So cases that predated the Posse Comitatus Act for example, I think need to be looked at at least with some caution before they're too readily or quickly applied to the circumstances of the sort we have here.
Judge Eric Miller (36:24):
I mean, those are maybe good arguments for the Supreme Court to reconsider those cases. But they've told us repeatedly that when there is a case that is directly applicable to an issue, even if we think it's been undercut by later developments and other areas of law or other statutes as you mentioned, or other Supreme Court cases, we are supposed to follow the applicable case and leave it to them to overrule it. So I guess my question is what can we as a court of appeals do with that argument?
Samuel Thomas Harbourt (37:00):
Your Honor, I think for one thing you can look to the other case, low report cases around the country that have distinguished Martin in recent weeks and months in the Alien Enemies Act context as persuasive authority. I also think you can recognize that those older cases you're mentioning did not consider statutory language identical to the third prong of the statute here or the government's extraordinary argument, which I think really does reduce down to the position that the president can federalize National Guard forces as soon as he makes a judgment that civilian federal law enforcement officials cannot do the job as they've been doing it in ideal circumstances or face any obstacles.
(37:47)
Or to put it another way, as we understand the government's position on the third prong, they essentially have a binary view of the world. Where there's World A, where federal officials like ICE agents are enforcing the law as they prefer, and then World B, they encounter any obstacle and then the president can immediately reach for the most extreme possible measure on the table, which is federalizing National Guard troops. As we see it, there are gradations in between those two worlds and at a minimum, prong three requires the president to make a showing that he's at least contemplated alternative, more modest measures before calling in the National Guard.
Judge Mark Bennett (38:26):
So counsel, even if I were to agree with you that the position advanced by the government that there's no review were wrong, where in the jurisprudence of the take care clause or the language of this statute is the president with significant deference at least required to have judicial review of whether he considered lesser measures? Where does that spring from, even if we were to agree with you that we have some ability to review the president's actions?
Samuel Thomas Harbourt (39:10):
Your Honor, as we see it comes from the plain text of the third prong of Section 12406, which of course is one of the laws that the president has a duty to take care is faithfully executed. And it says unable, not just unable in general, but unable with the regular forces to execute the laws of the United States. And I'd point the court to opposing counsel's definition of regular forces offered before the district court. This is from the district court transcript, which I believe is available on the court's electronic-
Judge Mark Bennett (39:42):
Yes, we have it.
Samuel Thomas Harbourt (39:44):
It's that regular forces, "Means everything other than the state National Guard. It could be local police, it could be federal marshals, it could be the Marines." Now our position, which I think is really quite modest is that given the enormous resources and personnel available to the federal government encompassed within that definition of regular courses, there at least needs to be some consideration of whether there are more modest measures than falling for the National Guard before taking that grave and extraordinary step.
(40:17)
And in terms of highlighting why that step is so extraordinary, why it's been so rare in our history, I point the court to the amicus brief filed by high ranking former military leaders including former secretaries of the Navy and the Army, former four star generals and admirals who have explained the grave threat to the country's democratic traditions of licensing the government to adopt the expansive, near limitless reading of section 12406 that it's articulated in this case. As that brief explains, this poses a risk, makes it all too easy for a president to call forth the National Guard to serve a domestic political policy agenda in a way that threatens to impugn, call into question that historic neutrality, impartiality integrity of the military in the eyes of the public.
Judge Sung (41:15):
Counsel, that brief seemed to offer a lot of reasons why the president's decision should have been counseled against and that they wouldn't have agreed with it, that it's bad for policy, let's say. But I think it stopped short of saying the president couldn't do that, couldn't make that decision. Is there something in that brief that you think was saying the president was not actually able to make this decision?
Samuel Thomas Harbourt (41:45):
Yes, Your Honor, in the sense that it highlights the great consequences of an overly expansive interpretation of Section 120406 and that should inform the way that the court reads the statute. But that's not the only significant consequence the court should bear in mind. It should also consider the profound effect on our federal structure of government and the balance of power between states and the federal government. Our framers made the decision it's reflected in the text of Article I's militia clauses, to generally leave to state governments control over the militia today, the National Guard. What we see is that decision, the wisdom of that decision has endured over the years and one of the most concrete ways to see that in this case is to look at the Act declarations filed in district court, which detail the critical functions performed by the California National Guard at the state level.
(42:40)
That's central to our claim of irreparable harm in this case, of leaving this day in effect. It's also central to the federalism concerns that we've raised that should animate the court's approach to construing section 12406. I'd also, Your Honor, to the extent it's relevant to the court's determination of the third prong of Section 12406, I'd like to push back quite forcefully on opposing counsel's suggestion that state and local leaders including law enforcement agents are unwilling or unable to address the situation on the ground in Los Angeles. I think the factual record shows otherwise, including the Santa Cruz declaration that opposing counsel relied heavily on. We would encourage the court to rely on that declaration because I think it really highlights all of the efforts that state and local law enforcement have been making in recent days to respond to the situation that includes making arrests.
(43:35)
I think that the current number is around 1000 arrests. There are thousands of state and local law enforcement officers that have been deployed. Local leaders have imposed a curfew in the affected areas between the hours of 8:00 P.M. and 6:00 A.M. There are other steps that have been taken as well, including using authority under state law to order unlawful assemblies and disperse crowds as necessary. State and local law enforcement officials are well-trained in crowd control and management of civil unrest-
Judge Mark Bennett (44:10):
And counsel, I'm sure that all of your clients subscribe to what you put at page one of your opposition to the state request. To be clear, the civil unrest in Los Angeles is a serious matter, violence against government officers and property is unacceptable.
Samuel Thomas Harbourt (44:31):
Absolutely, Your Honor. And the state and local leaders have roundly and repeatedly condemned this violence, which includes episodes unrest, not just directed against federal officials, but against state and local law enforcement officials as well. So it is a profound concern to the leaders of the state, but the state is dealing with it. Local law enforcement agencies are doing job of dealing with it. And to get back to a suggestion that Judge Miller made to opposing counsel, which I agree with, that in terms of evaluating the baseline when considering an invocation of prong three of the statute, it's worth stepping back and remembering that we're talking about federal law enforcement agencies that regularly encounter dangerous conditions in the field when doing their work. And so the question is, is the Delta so significant? Are we in a world that's so different from normal conditions as to justify an extreme measure like militarizing the situation and bringing in the National Guard?
(45:37)
We don't think that the federal government has even made the first step at seriously attempting to satisfy that standard. If I could, Your Honors, I'd like to turn through the governor requirements that the district court also applied. We acknowledge that there is some ambiguity and the meaning of this requirement, but we don't think it can credibly mean what the federal government suggests. Because what that suggests is that while the… Congress in 1908 added this language, it can be satisfied according to defendants by not involving the governor in any way, shape or form. And then at the end of the process, when the decision is made, when the final document is issued to just slap a label saying through the governor at the top of the document-
Judge Mark Bennett (46:32):
Go ahead, Judge Miller.
Judge Eric Miller (46:33):
What is your understanding of how it's supposed to work? So if the president, I guess, or the Secretary of Defense writes up the order, sends it to the governor. If the governor then looks at it says, "This is interesting," sticks it in his drawer and goes out to lunch, what happens then?
Samuel Thomas Harbourt (46:57):
Your Honor, I want to highlight just how far we are away from that situation.
Judge Eric Miller (47:00):
I understand and I'm not-
Samuel Thomas Harbourt (47:01):
There's no attempt-
Judge Eric Miller (47:03):
[inaudible 00:47:05]-
Samuel Thomas Harbourt (47:04):
… comply with it.
Judge Eric Miller (47:05):
… anyone [inaudible 00:47:06], just hypothetically.
Samuel Thomas Harbourt (47:09):
Our position is that the best understanding in light of our general expectation in our system, that when Congress seeks to involve government officials, it seeks to promote rather than undermining federalism and state sovereignty. So we think the best reading would be that the governor's consent is required, but we don't think the court needs to go nearly that far to agree with us that there was a violation here. Because at a minimum, we think that issuance through the governor requires notifying the governor of the federalization decision and asking him to issue it, which would give the governor a chance to consult, at least consult on the scope of the president.
Judge Mark Bennett (47:55):
So where does the statute say that issuing it through the governor requires either the governor's consent or requires consultation with the governor? Where in the text do you take that from?
Samuel Thomas Harbourt (48:14):
Your Honor, we take it from the plain meaning of through the governor. So that's the first step. What does it mean to be issued through the governor? For the governor to issue it, we think at a minimum that means that the governor needs to be informed of it and given the chance to issue it. And here's why we think that the statute should be read to include at least a consultation opportunity because the defendant's contrary view would pose very serious constitutional questions. So under their view, they can just do the whole process without consulting the governor at all and then slap his name at the top of the document at the end of the process. That risks blurring the lines of political accountability in much the same way as the commandeering laws that were struck down by the Supreme Court in cases like Prince and like Murphy. It essentially forces the governor to share in the political responsibility for-
Judge Mark Bennett (49:10):
Absolutely. If we were to disagree with your reading and looked at this as a ministerial task that's in the statute, would there still have been more that the United States would've been required to do other than sending this to the adjutant who is the governor's subordinate and issues all orders in the name of the governor? Would there have had to have been something directly to the governor's email or mailed? I'm not trying to be facetious here, but if we disagree with you about consultation and consent, was there anything more that needed to be done here as a technical matter in your view?
Samuel Thomas Harbourt (49:57):
In our view, yes, Your Honor, to issue it through the governor, it needs to at least go to the governor. If I could, I would like to take one more pass at persuading you that the federal government's interpretation just can't be right. As I understand it, they do present it as a purely ministerial requirement, essentially a routing requirement to ensure that there's not command confusion in the event that the State guard is transferred to federal authority. The reason we don't think that can be right is there are other federal statutes, most notably the Insurrection Act, which similarly allowed the transfer of the National Guard to federal authority and pose the very same types of chain of command confusion that defendants have highlighted here. Those statutes do not include the same through the governor language. So Congress must have had something else in mind when it deliberately chose to add this language to the statute in 1908. And I just add-
Judge Eric Miller (50:57):
I mean it's a very roundabout way, I mean, of imposing a consultation requirement. It seems like on your reading they should have said orders for these purposes shall be issued after consultation with the governor or something like that. This is a very indirect way of accomplishing that purpose if that was the purpose, isn't it?
Samuel Thomas Harbourt (51:16):
I'm not so sure it's indirect, Your Honor. I think when Congress imposed an issuance through the Governor requirement, they were contemplating and good faith on both sides and that there would be some level of coordination involved. And just one more point on this as evidence that our reading of the statute is correct. I'd actually point you to the President's memorandum on June 7th itself, which directed Secretary Hegseth to coordinate with the governors of the States. That suggests that even the president saw this statute as imposing some type of consultation report coordination requirement, Secretary Hegseth did not do so.
Judge Eric Miller (51:58):
I mean, Judge Bennett alluded to this provision of state law a moment ago, but just as a general matter, under principles of agency law, if you have to notify someone or get someone's consent or here, do something through someone, that means someone or that person's agent, and here I guess the Military and Veterans Code in Section 163 of state law says that the Adjutant General can issue orders in the name of the governor. So it would seem like the state has made the Adjutant General effectively the substitute for the governor in this context. So why wasn't it enough that they sent it to that officer?
Samuel Thomas Harbourt (52:38):
Your Honor, that's not our understanding of that provision of state laws. We understand that the Adjutant General still has an obligation to communicate and coordinate and take orders from the state's chief executive and the commander in chief of the Armed Forces under the California Constitution with respect to the National Guard. It's just after those decisions are made, the Adjutant General has authority to issue orders in the name of the governor. So we don't read it in the expansive way that our opponents do.
Judge Mark Bennett (53:09):
All of his duties under Section 163 are as prescribed by the governor and he shall issue all orders in the name of the governor. And this is a statute that's been around for a while. Yeah?
Samuel Thomas Harbourt (53:24):
It has, Your Honor. And as I mentioned, we don't read it as the federal government does. I'd also point out just because that state law may get the Adjutant General certain authorities, that doesn't mean that the president has certain authority to issue orders through the name of the governor under federal law. And we know from the plain text of Section 12406 that Congress knew how to allow orders to be issued through a commanding officer because that is the process prescribed with respect to the National
Samuel Thomas Harbourt (54:00):
National Guard of the District of Columbia.
Judge Mark Bennett (54:03):
But that prescription is federal law.
Samuel Thomas Harbourt (54:08):
It is, Your Honor.
Judge Mark Bennett (54:09):
I mean the D.C. prescription, I take the reason they mentioned that there is because that is a matter of federal law over which the Congress has control.
Samuel Thomas Harbourt (54:22):
My point is simply that the text illustrates that Congress knew how to allow an order to be issued through a commanding officer instead of a chief executive. And it didn't do that with respect to the governors of the 50 Sovereign States.
Judge Sung (54:37):
Counsel, I want to go back to what you're arguing in terms of the conditions necessary for the president to exercise its calling forth power as delegated by the statute. I hear you arguing that the exigency required under Subsection 3, essentially the inability to execute the laws with the regular forces wasn't met.
(55:07)
I don't hear you arguing that the president cannot rely on that subsection based on anything it said in the executive order or that it wasn't properly invoked or relied on. I hear you arguing that we can and should consider the evidence put forth before the district court, not that we would be limited to what's in the executive order. So are you conceding those points?
Samuel Thomas Harbourt (55:37):
If I understand the question, I certainly acknowledge that, yes, the district court should have been looking at the evidence put forward by the federal government to try to satisfy the factual predicates required under Section 12-406.
(55:53)
And as the district court rightly concluded, the federal government had failed to provide argument or evidence that would even really make a serious attempt at satisfying that predicate because it didn't even suggest that it contemplated more modest measures than calling in the National Guard.
Judge Sung (56:11):
I'll try to clarify my question. You are not arguing that we would be limited only to what was stated in the executive order to determine whether the factual basis is there. Is that correct?
Samuel Thomas Harbourt (56:26):
I see. That's correct.
Judge Sung (56:28):
And you're not arguing that the executive order failed to rely on Subsection 3 or invoke Subsection 3. Is that correct?
Samuel Thomas Harbourt (56:39):
That's not an argument that we've made at least at this preliminary stage of the litigation. That's right. Although I do think it's notable that the federal government has principally relied in its papers and in the executive order on Prong Two do think… suggests that they understood they didn't make a serious effort to show evidence or argument as to Prong Three.
Judge Sung (57:06):
Okay.
Samuel Thomas Harbourt (57:07):
Your Honors, with permission of the court, I know that I've gone past my time, I would like to very briefly address irreparable harm.
Judge Mark Bennett (57:15):
That's fine. Counsel, please do so.
Samuel Thomas Harbourt (57:17):
Thank you, Your Honor. We would ask the court to reject the government's motion for a stay pending appeal because every day that the stay remains in effect, it causes these two principle forms of irreparable harm that I'd like to highlight.
(57:35)
One is the concrete harm to important state functions that are not happening because of the diversion of now fully one third of California's National Guard troops that are available to the president's unlawful mission on the streets of Los Angeles. That's causing harm in terms of not having troops on the ground ready to respond to emergencies, especially wildfires, which is especially problematic as we enter the peak of wildfire season, which experts believe is likely to be especially harmful and severe this year.
(58:12)
The ECC declarations, again, just briefly Your Honors, detail the many important functions beyond wildfire prevention, emergency response, drug interdiction performed by our National Guard units when they're not federalized.
(58:28)
Beyond that, every day that this order remains in effect, it is causing harm to our nation's broader democratic tradition of separation of the military from civilian affairs. And that is not just a problem for the 60-day presumptive deployment here, which could be extended further by Secretary Hegseth. It's a problem because it sets a precedent for this president and future presidents to take similar actions going forward.
(58:56)
Just in closing Your Honors, in considering the legality of the president's actions and the request for a stay, it's important to bear in mind that sheer scope of the president's order here.
(59:10)
We've been focused today on the conditions in Los Angeles, but the order is not limited. The president's order is not limited to Los Angeles or even California. There's no limit in terms of geography whatsoever. It's not limited in the number of troops that can be called up. It's not limited in the duration that those troops can be called up for. And there is no real limit imposed on the scope of the mission. It's not limited to assistance with ICE enforcement.
(59:38)
It also allows for protection of, quote, "other US government personnel" who are performing federal functions. That's essentially anything the federal government is doing that is staggeringly broad in scope. In the state's view, it is plainly unlawful, inconsistent with our nation's traditions. We would respectfully ask the court to deny the government's extraordinary motion for a stay pending appeal.
Judge Mark Bennett (01:00:04):
All right, thank you. Mr. Shumate, you have time left.
Brett Shumate (01:00:11):
Thank you, Your Honor. If I may, I'd like to make three quick points in rebuttal and I want to start first with the Martin case, which there's some discussion of that case. The point I want to make is that that decision is both controlling and remains good law. It's controlling because the statute in that case is very similarly structured to the statute at issue here.
(01:00:29)
The Act of 1795, again, started with a whenever clause and it had one condition--invasion. And if that condition was met, the president could call forth the militia. Here, the statute also starts with a whenever clause. It also includes the invasion problem, but it also has two additional elements. And it concludes with a delegation to the president that he may call forth the guard if in his judgment it's necessary.
(01:00:52)
So I think in deciding a reviewability question, you look at the language of the statute, not factual distinctions on the ground, yes, in that case it was an invasion, it was a foreign policy matter. But this statute also, that's before you're here, Title X, also invokes foreign affairs powers and the president's domestic powers as well. And it's also remains good law, right.
(01:01:15)
We cited the Dalton case, which was a 1990s decision that invoked the same principle where a statute is drawn in a way that delegates broad discretion to the president. Courts don't just defer to the president, the president's judgment. The courts don't review the president's judgment. And that's what we have here. And in that case, it was a domestic matter, not a foreign policy matter. So Martin would not be just limited to foreign policy matters.
(01:01:39)
The second point I wanted to make was the easiest path to a decision here is on the third problem, the President made a determination that he's unable based with the regular forces to execute the laws of the United States.
(01:01:52)
The record certainly bears that out, not only in his proclamation but also in the declarations made clear and the plaintiffs have conceded. There is civil unrest in Los Angeles, but not just ordinary civil unrest. Civil unrest is targeting federal law enforcement officials and designed and aimed to prevent them from carrying out their duties. The court should at least defer to the president's judgment under Prong Three.
(01:02:15)
And then finally on the through language, I think the plaintiffs have an extraordinarily dangerous interpretation of that statute. Under their reading of the statute, Governor Newsom could pocket veto the president's orders, not convey them, and wait for somebody to come down to Sacramento and consult with him before he issues that order. That is not what the statute says.
(01:02:38)
The statute says through the governor, doesn't say by the governor, we've cited other statutes that are similar. That contain the consultation language. This statute does not contain that language.
(01:02:48)
In sum, Your Honors, we would ask you to grant our motion for state pending appeal. If you deny our state pending appeal, we would ask the court to give us an opportunity to seek emergency relief from the Supreme Court. Thank you.
Judge Mark Bennett (01:02:59):
All right. We thank all counsel for their helpful arguments, especially on an expedited basis. We thank counsel for appearing remotely. I would also simply note that the panel is cognizant of the fact that you have another hearing set on Friday before Judge Breyer. And again, thank you. And with that the court is adjourned.
Judge Sung (01:03:30):
This court for this session stands adjourned.
