Two of those judges were appointed by President Trump in his previous term.
Trump deployed the troops through a presidential memo on June 7 and cited a rarely used federal statute permitting a president to deploy the National Guard in times of invasion, domestic rebellion or the inability for the federal government to carry out its laws. Trump’s order was for 60 days and technically applied to all of the state Nation Guards in the U.S.
What happens next could take one of several turns. On Friday a lower court judge, Charles Breyer, will hold a hearing on whether to return the troops to Newsom through a preliminary injunction. Breyer last week issued an order that would have temporarily halted Trump’s deployment, but the 9th Circuit blocked it.
Now, the battle over whether federal troops can remain in Los Angeles is operating on three parallel tracks — the case the 9th Circuit decided today, which can be appealed; Friday’s hearing on the preliminary injunction; and the full merits of the case that would be argued through a prolonged trial.
For Newsom’s legal team to prevail in Friday’s hearing, they’ll have to clear a higher threshold of scrutiny than they did when they initially won back the National Guard last week, albeit for a few hours. That’s because anyone seeking a preliminary injunction must demonstrate that the merits of their arguments will likely prevail in the full trial.
The appeals court’s decision could influence Breyer’s thinking, legal thinkers said, even if he initially signalled support for the Newsom administration’s arguments.
“It’s kind of hard to disentangle the two processes when we think about how judge Breyer will be weighing” the preliminary injunction hearing,” because a lot of that’s going to be informed by what these higher level courts decide,” said Christopher Mirasola, an assistant law professor at the University of Houston Law Center.
No matter what Breyer does after Friday, it’ll likely quickly go back to the appeals court. And if the appeals court keeps halting the lower court’s orders, Trump keeps the National Guard for the duration of the lower court’s full trial.
Would the Newsom team try to appeal the injunction with the Supreme Court?
On one hand, “why not shoot your shot when you got the opportunity, right?” asked Mirasola rhetorically. But there’s a chance the high court comes back with such a strong opinion favoring the Trump administration that it could “substantively affect how judge Breyer treats the merits of the case.”
This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.
