A day or so ago I read that Governor Newsom was going to file a lawsuit challenging Trump’s decision to send National Guard troops, and possibly Marines, to Los Angeles. Part of me was happy to hear the push-back, but I also quickly sighed because, as a lawyer, I know that the courts are not well-suited to judge and stop this kind of military/police dispute and (without having delved specifically) I know that we have decades (and more) of statutes from Congress negligently ceding power to the Executive Branch. Plus, any court is going to be concerned about how to provide injunctive relief that would require the Executive Branch itself to enforce and, in any event, the length of appeals through the Supreme Court will likely or largely moot the case. Worse, a loss in court could strengthen and embolden the federal wrongdoing.
Now on CNN I read the following about California’s lawsuit:
Attorneys for California asked a federal judge on Tuesday for an emergency order that would temporarily prohibit the Trump administration from using members of the state’s National Guard to enforce laws in the state, including by assisting federal officials with immigration enforcement . . . .
The requested order, attorneys for the state told the court, “will prevent the use of federalized National Guard and active duty Marines for law enforcement purposes on the streets of a civilian city.” But they noted that they were not seeking to prevent the federalized National Guard members from “protecting the safety of federal buildings or other real property owned or leased by the federal government, or federal personnel on such property.”
Ugh, this makes it much worse. This isn’t “invoking the National Guard was unlawful and must be enjoined,” but “we reserve all of our arguments, but the court should enjoin the National Guard on X matters, but we recognize that they can still do Y matters.” And all in the context of evolving civil unrest.
The courts are not particularly suited to doing this. This court already has denied CA’s initial request for a TRO and scheduled further arguments for Thursday. I am not optimistic, especially when considering the appeals process.
But I said in the headline that I was emphatic with Newsom, Democrats and the courts. Why? Because none of this properly should be in the courts. Because U.S. voters should be rising up and making it clear that military authoritarianism is not acceptable. Because the Congress — not the courts — should be the front line competing branch guarding against (wildly) excessive Executive Branch over-reach and authoritarianism. Because a functioning Executive Branch would not only have competent advisors, but cabinet level Secretaries willing to resign.
What we see, and are responding to, is a wholesale collapse by the Republican Party, the Republican voters, and Republican leaders in the House and Senate (with the Republican Supreme Court Justices lurking over every issue).
I have empathy for Newsom, Democrats and the courts because they are doing what they can do — inside the institutional structures that we want to protect. But the real fight is on a different, wider ground. Nothing will succeed until Republicanism is defeated. Not Trump, not its re-branded MAGA . . . but the Republicans.
It will be an epic struggle, but our greatest asset is their demonstrated incompetence.
