California Unity Bar Files Friend-of-the-Court Brief Urging the Ninth Circuit to Hold President Trump’s Deployment of Federalized National Guard Troops Illegal
California Unity Bar Files Friend-of-the-Court Brief Urging the Ninth Circuit
to Hold President Trump’s Deployment of Federalized National Guard Troops
Illegal
In a case with nationwide implications for the domestic use of the military, the
California Unity Bar filed a friend-of-the-court brief in support of California’s
position that President Donald Trump did not have the authority to deploy
federalized National Guard forces in response to protests in Los Angeles. The
courts’ ability to check executive power—which includes determining when a
president acts in bad faith or offers pretextual reasons—is essential to our
constitutional democracy. The brief urges the Ninth Circuit to affirm the district
court’s ruling in Newsom v. Trump, which held that the deployment was illegal and
should end.
The California Unity Bar, joined by the Korematsu Center for Law and Equality,
urge the court to scrutinize the motives behind the President’s deployment by
considering all relevant facts established by reliable and available evidence. This
includes examining this decision in view of the broader context in which it was
made. The Unity Bar and the Korematsu Center argue that broader consideration
shows the President’s stated reasons for deploying the National Guard — to protect
federal property and personnel during immigration enforcement actions — are
pretextual.
The brief draws on the lessons of the 1944 decision Korematsu v. United States, a
notorious example of the courts failing to serve as a check on executive power. The
three justices who dissented from this now overruled and widely repudiated
Supreme Court decision criticized the majority for its overly narrow focus on and
approval of the government order forcing Fred Korematsu to leave a militarized
zone without putting it in the context of the government’s mass incarceration of
Japanese Americans. They urged the majority not to turn a blind eye to readily
available facts that undercut the government’s purported national security rationale
and warned of the danger of unchecked executive power.
“It is essential that the court scrutinize the President’s intent with eyes wide open
to the realities of our time, which include the administration’s stated desire to use
the National Guard to militarize Democratic-run cities as well as its actions
nationwide to expand and consolidate executive power and suppress opposition.”
said Sarvenaz Bahar, counsel for the California Unity Bar. “The deployment at
issue is part and parcel of this larger plan and shares the same purpose. To see the
full picture, we must connect the dots.”
The evidence does not support Trump’s stated rationale for the deployment.
Just in the past few months, the administration has exponentially expanded the
purpose and geographic scope of deployment of National Guard forces. In a
marked departure from its initial claim in this lawsuit, the administration now
contends that it has the authority to use the National Guard not only to protect
federal personnel and property when immigration laws are being enforced but
whenever federal personnel are present for any purpose and as a purely preventive
measure even when there is no actual or even potential threat.
This change in the administration’s position is playing out in the streets of
American cities. The president recently deployed the National Guard to
Washington, D.C. and has revealed plans to do the same in a long list of
Democratic-led cities, purportedly in response to runaway crime. He also ordered
the establishment of “specialized” National Guard units for this purpose. U.S.
District Court Judge Charles Breyer found after a three-day trial that the
administration is “creating a national police force with the President as its chief.”
Not only are the crimes at issue state rather than federal matter, but the data does
not support such a selective and partisan deployment. In fact, crime has been
steadily decreasing to reach an all-time low in the targeted, Democratic-run cities.
The data also shows that crime rates are higher in Republican-run cities and states
that have not been targeted for National Guard deployments.
The findings of two federal district courts and investigative reporting based on
Immigration and Customs Enforcement data provide more evidence that the
administration’s stated pretext for the deployments is false. They show that the
administration has starkly different immigration enforcement policies in red and
blue states. Its policy in blue states is particularly disruptive and focused on
community raids that result in large-scale detentions of people without criminal
records. The findings also establish that local law enforcement was fully capable of
handling the protests in Los Angeles, which predictably followed heavy-handed
immigration enforcement tactics.
The Trump administration’s unprecedented attacks on the judiciary, the legal
profession and Congress provide further evidence of a misleading pretext for the
deployments. These attacks have served to expand executive power and suppress
opposition, all in the name of national security and public interest.
Robert Chang, Executive Director of the Korematsu Center, notes: “The brief
warns that any holding by the court that the President’s decision to deploy
federalized National Guard forces in Los Angeles was lawful will be used by the
executive branch to justify far broader use of these forces nationwide for political
purposes and in violation of the Constitution.”
About the California Unity Bar
The California Unity Bar is an unincorporated organization of local bar
associations across 16 counties throughout the state. See
https://www.calunitybar.org/about. The California Unity Bar is committed to
fostering a legal community that reflects the diverse communities being served,
and it seeks to unify bar associations throughout California in their pursuit of a
more equitable and inclusive judicial system. It has a unique interest in upholding
the ideals of justice for all because it serves communities with a deep
understanding of historical injustices.
Media Contact:
Sarvenaz Bahar, counsel for California Unity Bar, sb@baharlaw.com
Jessie Morris, Unity Bar Ambassador, jessiemor@gmail.com, 916-396-7273
