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On Thursday, President Donald Trump scored a temporary victory after an appeals court ruled that he can continue deploying the National Guard as part of his watch-me-play-fascist-on-TV response to anti-ICE protests in Los Angeles. The decision accepted Trump’s premise that conditions in L.A. permit him to take control of the guard—but it rejected his claim that such decisions should be entirely unreviewable by courts.
That latter part of the ruling is important. It’s potentially something of an obstacle to his ongoing effort to assume quasi-dictatorial powers for himself—for now, anyway.
Trump apparently processed only the first part. He posted the following, in a reference to California Governor Gavin Newsom, who’s suing to block Trump from taking over his state’s guard (emphasis added):
The Judges obviously realized that Gavin Newscum is incompetent and ill prepared, but this is much bigger than Gavin, because all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done.
In short, Trump seized on this mixed ruling to threaten to send in the National Guard anywhere in the United States if and when he decrees it “necessary.” The scare quotes are mine, because on many fronts, Trump is testing how far he can get by inventing ways to claim such actions are “necessary,” a power he and his advisers see as boundless.
All of which highlights a deeper conundrum here: What can the courts—and the rest of us—do in the face of a president whose bad faith and willingness to concoct pretexts for abusing his powers basically have no bottom?
The new ruling is not encouraging. The relevant law says Trump can federalize the National Guard only if we’re under foreign invasion or the threat of rebellion, or if the president can’t otherwise execute federal laws. A lower court had found, among other things, that Trump had not met this requirement—because what’s happening in L.A. does not come close to meeting those criteria.
But the Ninth Circuit Court of Appeals has now ruled otherwise. It found that Trump’s lawyers have presented sufficient evidence that the protests and violence are in fact impeding the execution of laws. That’s too bad: As legal expert Elizabeth Goitein explains, the facts on the ground don’t remotely support that assertion, and the court reached this position in part by granting Trump, as president, overly expansive deference to simply declare it to be the case.
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