Why 9th Circuit Court Overruled Ex-Justice Breyer’s Brother on Trump’s Use of National Guard in LA Riots

It took the 9th Circuit Court of Appeals only a few hours to block a lower court’s ruling against President Donald Trump’s federalization of the California National Guard in the Los Angeles riots.

The appeals court acted expeditiously because Trump was so clearly in the right, according to Hans von Spakovsky, a senior legal fellow at The Heritage Foundation.

“Look, what the president did is something he is statutorily authorized to do, much less looking at his constitutional authority as commander-in-chief,” von Spakovsky told The Daily Signal in an interview Friday.

He cited 10 U.S.C. 12406, which allows the president to call the National Guard—which ordinarily falls under the purview of state governors—into federal service in three circumstances: invasion or threat of invasion, rebellion or threat of rebellion, and if the president cannot execute U.S. law with regular forces.

Trump invoked the third reason when he ordered the California National Guard to assist federal law enforcement in Los Angeles amid the riots. Immigration and Customs Enforcement had carried out raids to detain and deport illegal aliens, and agitators physically blocked them from doing so. Protests against the raids devolved into violence, as agitators attacked ICE agents, set vehicles ablaze, and looted retail stores.

After Trump activated the California National Guard, Gov. Gavin Newsom, D-Calif., filed a lawsuit challenging the action.

U.S. District Judge Charles Breyer, an appointee of President Bill Clinton and brother to former Supreme Court Justice Stephen Breyer, issued an order Thursday demanding that Trump turn control of the National Guard back to Newsom by Friday afternoon. The president appealed, however, and later that afternoon, a three-judge panel of the 9th Circuit granted his request to stay the order. (Trump appointees Mark J. Bennett and Eric D. Miller agreed with Jennifer Sung, an appointee of President Joe Biden.)

Von Spakovsky said it would have “shocked” him if Judge Breyer had rule for Trump.

“Knowing Charles Breyer and his previous history, there’s no way he would’ve ruled for Donald Trump, no matter what the law says,” the legal fellow argued.

Von Spakovsky noted that Breyer ruled Trump violated the 10th Amendment to the Constitution, which reserves certain powers to the states and to the people.

“When was the last time a liberal judge paid any attention to the 10th Amendment?” the legal fellow asked, laughing. “I mean, liberal judges believe the federal government has the power to do anything, right?”

“The 9th Circuit moved almost immediately to stay the decision while they take a look at the case,” he noted.

Von Spakovsky also mentioned that the 9th Circuit is “very liberal,” but he insisted, “This is really not a gray issue. The statute’s very clear.”

Newsom argued that, as governor, he had the authority to block Trump from federalizing the National Guard. Yet if that were true, a major civil rights battle nearly 70 years ago would have gone very differently.

Von Spakovsky recalled that in 1957, after the Supreme Court desegregated schools in Brown v. Board of Education (1954), Arkansas Gov. Orval Faubus attempted to use the National Guard to prevent black students from entering a Little Rock high school. President Dwight D. Eisenhower federalized the Arkansas National Guard and protected the “Little Rock 9″ as they entered the school.

The legal fellow noted the second provision of the law in question, enabling the president to federalize the guard if there’s a rebellion.

“It wouldn’t make any sense to say the president has to get the permission of the governor,” von Spakovsky said. “What if it’s the governor who’s rebelling, right?”

“What did Dwight D. Eisenhower do? He sent in federal troops to protect those black students and to make sure they were not assaulted,” the legal fellow noted. “I guess it’s a good thing that Charles Breyer wasn’t a judge in Arkansas at that time.”

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