A group of Democratic senators is filing a friend of the court brief Tuesday in California Gov. Gavin Newsom’s lawsuit against President Donald Trump, stepping up pressure to keep Trump from overriding Democratic leaders and sending National Guard troops into Democrat-led cities like Chicago.
The 19 senators are asking the U.S. Court of Appeals for the 9th Circuit to overturn a temporary order issued by a three-judge panel in June that found that Trump had the authority to send National Guard troops into Los Angeles this summer over Newsom’s objections. The Democratic senators argue that the issue has gained greater salience since then, as Trump began threatening to go into other states and cities against the wishes of their governors and mayors.
The senators are amplifying Newsom’s argument that the president’s use of the federal troops — at a moment when local law enforcement officials said they did not need federal support — violated the separation of powers doctrine by usurping Congress.
A federal district court judge initially sided with Newsom on June 12. Then, on June 19, the three-judge panel issued their temporary ruling siding with Trump. California is waiting on a final ruling from the appeals court.
Led by California Democratic Sens. Adam Schiff and Alex Padilla, the group includes senators who represent Baltimore, Boston, Chicago, and Portland — all cities that Trump has threatened to send in National Guard troops to “straighten it out” as he ramps up enforcement on crime and immigration. Schiff said in a statement that he hoped the Newsom case would become “the line drawn in the sand to prevent further misuse of our service members on the streets of American cities.”
The senators argue in their brief that by federalizing 4,000 California National Guard troops for domestic law enforcement over Newsom’s objections “without showing a genuine inability to enforce federal laws with the regular forces,” Trump violated the Tenth Amendment’s anti-commandeering mandate and contravened the provisions of the Constitution assigning power over militias to Congress.
“Our concern that President Trump will continue to act in bad faith and abuse his power is borne out by his recent deployment of state militias to Washington, D.C. and his stated intent to deploy state militias elsewhere (like Chicago and Baltimore),” the senators wrote in the brief obtained by The Washington Post that will be filed in court Tuesday. They warned that courts are the last resort to “prevent the President from exceeding his constitutional powers” and that failing to do so could “usher in an era of unprecedented, dangerous executive power.”
In court filings this summer, the administration argued that Trump was compelled to send the National Guard to protect federal personnel and property because numerous “incidents of violence and disorder” posed unacceptable safety risks to personnel who were “supporting the faithful execution of federal immigration laws.” Department of Justice lawyers argued that Trump was within his rights to mobilize the National Guard and Marines “to protect federal agents and property from violent mobs that state and local authorities cannot or choose not to control.”
Before Trump sent National Guard troops into Los Angeles this summer in the midst of protests against his administration’s immigration raids, prior presidents had deployed Guard troops on American soil primarily to assist after natural disasters or to quell unrest.
The senators write that the last instance in which a president federalized the National Guard without consent from the state’s governor is when Alabama Gov. George Wallace (D) ordered the Alabama Highway Patrol to prevent the Rev. Martin Luther King, Rep. John Lewis and others from marching from Selma to Montgomery. President Lyndon B. Johnson intervened to protect the marchers.
Our arguments to the court make clear that Trump’s unprecedented militarization of Los Angeles should not be used as a playbook for terrorizing other cities across America,” Padilla said in a statement.
Last month, the president deployed National Guard troops and federal agents to D.C., arguing that they needed to tackle a “crime emergency” that local officials say does not exist. D.C. Attorney General Brian Schwalb, a Democrat, last week sued the Trump administration, seeking to force it to withdraw troops from the city.
In recent days, Trump has escalated his warnings to intervene in Chicago, posting on his social media site that the city is “about to find out why it’s called the Department of WAR,” a reference to the Defense Department.
Illinois Gov. JB Pritzker (D) said on social media Monday that Trump’s threats were not “about fighting crime,” which would require “support and coordination” from the administration that he had not yet seen.
The Department of Homeland Security announced Monday that it had launched an operation to target immigrants in Chicago as the president vowed a broader crackdown on violent crime. A spokesperson for Pritzker said Monday that the governor’s office has not received any formal communication from the Trump administration or information about its plans.
