SAN FRANCISCO — A federal appeals court in San Francisco is scheduled to hear arguments Tuesday on whether the Trump administration should return control of National Guard troops to California after they were deployed following protests in Los Angeles over immigration raids.
The hearing comes after the 9th U.S. Circuit Court of Appeals granted a request by the administration last week to temporarily pause a lower court order that directed President Donald Trump to return control of the soldiers to the governor who filed a lawsuit over the deployment.
The three-judge panel is set to hear oral arguments via video starting at noon, and protests outside the downtown San Francisco court are expected.
U.S. District Judge Charles Breyer in San Francisco ruled last week that the Guard deployment was illegal and exceeded Trump’s statutory authority. It applied only to the National Guard troops and not the Marines, who were also deployed to LA.
The Trump administration argued the deployment was necessary to restore order and protect federal buildings and officers.
In his lawsuit, Gov. Gavin Newsom accused the president of inflaming tensions, breaching state sovereignty and wasting resources. The governor calls the federal government’s decision to take command of the state’s National Guard “illegal and immoral.”
Newsom filed the suit following days of unrest as demonstrators protested against federal immigration raids across the city.
The judge ruled the Trump violated the use of Title 10, which allows the president to call the National Guard into federal service when the country “is invaded,” when “there is a rebellion or danger of a rebellion against the authority of the Government,” or when the president is unable “to execute the laws of the United States.”
Breyer, who was appointed by former President Bill Clinton, said in his ruling that what has been happening in Los Angeles does not meet the definition of a rebellion.
“The protests in Los Angeles fall far short of ‘rebellion,’” he wrote. “Individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone.”
The National Guard hasn’t been activated without a governor’s permission since 1965, when President Lyndon B. Johnson sent troops to protect a civil rights march in Alabama, according to the Brennan Center for Justice.