Three of the country\u2019s most powerful judges met in Pasadena on Wednesday for a rare conclave that could rewrite the legal framework for President Trump\u2019s expansive deployment of troops to cities across the United States. <\/p>\n
The move to flood Los Angeles with thousands of federalized soldiers over the objection of state and local leaders shocked the country back in June. Five months later, such military interventions have become almost routine.<\/p>\n
But whether the deployments can expand \u2014 and how long they can continue \u2014 relies on a novel reading of an obscure subsection of the U.S. code that determines the president\u2019s ability to dispatch the National Guard and federal service members. That code has been under heated debate in courts across the country.<\/p>\n
Virtually all of those cases have turned on the 9th Circuit\u2019s decision in June. The judges found that the law in question requires \u201ca great level of deference\u201d to the president to decide when protest flashes into rebellion, and whether boots on the ground are warranted in response. <\/p>\n
On Wednesday, the same three judge panel \u2014 Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu \u2014 took the rare move of reviewing it, signaling a willingness to dramatically rewrite the terms of engagement that have underpinned Trump\u2019s deployments. <\/p>\n
\u201cI guess the question is, why is a couple of hundred people engaging in disorderly conduct and throwing things at a building over the course of two days of comparable severity to a rebellion?\u201d said Miller, who was appointed to the bench in Trump\u2019s first term. \u201cViolence is used to thwart the enforcement of federal law all the time. This happens every day.\u201d <\/p>\n
The question he posed has riven the judicial system, splitting district judges from appellate panels and the Pacific Coast from the Midwest. Some of Trump\u2019s judicial appointees have broken sharply with their colleagues on the matter, including on the 9th Circuit. Miller and Bennett appear at odds with Ryan D. Nelson and Bridget S. Bade, who expanded on the court\u2019s June ruling in a decision Monday that allowed federalized troops to deploy in Oregon. <\/p>\n
Most agreethat the statute itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell spasms of violent domestic unrest, the law Trump invoked has almost no historical footprint, and little precedent to define it. <\/p>\n
\u201cIt\u2019s only been used once in the history of our country since it was enacted 122 years ago,\u201d California Solicitor General Samuel Harbourt told the court Wednesday. <\/p>\n
Attorneys from both sides have turned to legal dictionaries to define the word \u201crebellion\u201d in their favor, because the statute itself offers no clues. <\/p>\n
\u201cDefendants have not put forward a credible understanding of the term \u2018rebellion\u2019 in this litigation,\u201d Harbourt told the panel Wednesday. \u201cWe\u2019re continuing to see defendants rely on this interpretation across the country and we\u2019re concerned that the breadth of the definition the government has relied on … includes any form of resistance.\u201d <\/p>\n
The wiggle room has left courts to lock horns over the most basic facts before them \u2014 including whether what the president claims must be provably true.<\/p>\n
In the Oregon case, U.S. District Judge Karin Immergut of Portland, another Trump appointee, called the president\u2019s assertions about a rebellion there \u201cuntethered to the facts.\u201d <\/p>\n
But a separate 9th Circuit panel overruled her, finding the law \u201cdoes not limit the facts and circumstances that the President may consider\u201d when deciding whether to use soldiers domestically.<\/p>\n
\u201cThe President has the authority to identify and weigh the relevant facts,\u201d the court wrote in its Monday decision. <\/p>\n
Nelson went further, calling the president\u2019s decision \u201cabsolute.\u201d <\/p>\n
Upon further review, Sung signaled a shift to the opposite interpretation. <\/p>\n
\u201cThe court says when the statute gives a discretionary power, that is based on certain facts,\u201d she said. \u201cI don\u2019t see the court saying that the underlying decision of whether the factual basis exists is inherently discretionary.\u201d <\/p>\n
That sounded much more like the Midwest\u2019s 7th Circuit decision in the Chicago case, which found that nothing in the statute \u201cmakes the President the sole judge of whether these preconditions exist.\u201d <\/p>\n
\u201cPolitical opposition is not rebellion,\u201d the 7th Circuit judges wrote. \u201cA protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.\u201d <\/p>\n
The Trump administration\u2019s appeal of that decision is currently before the Supreme Court on the emergency docket. <\/p>\n