Judge Mark J. Bennett acknowledged that while presidential authority in these cases is not "unreviewable," it remains substantial and deserving of respect by the courts.
The court stated, "we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when 'the President is unable with the regular forces to execute the laws of the United States.'"
Writing for the appellate panel, Judge Mark J. Bennett acknowledged that while presidential authority in these cases is not “unreviewable,” it remains substantial and deserving of respect by the courts. “Our review of that decision must be highly deferential,” Bennett wrote, citing decades of precedent that support the executive’s discretion in addressing domestic disturbances.
The court rejected the federal government's most sweeping claim — that courts have no right to review a president’s decision to federalize the National Guard — but still upheld the administration's ability to deploy troops.
The case will return to the courtroom US District Judge Charles R. Breyer, who had earlier attempted to halt the deployment with a temporary restraining order. Unlike Breyer, the appellate court declined to determine whether conditions in Los Angeles met the legal definition of a “rebellion,” focusing instead on the structure and limits of executive authority.
In a critical portion of his opinion, Judge Bennett refuted the federal government’s claim that the courts were powerless to intervene even in bad-faith deployments. Citing the 1932 Supreme Court case Sterling v. Constantin, Bennett emphasized that presidential decisions must still fall within the “permitted range of honest judgment” when using force to restore order.
There remain some unresolved questions about the Posse Comitatus Act, which prohibits the use of military personnel for domestic law enforcement. In the meantime, Los Angeles continues to see a stabilizing presence of National Guard forces as the legal process moves forward under the framework now clarified by the appellate court.
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