In the recent cases challenging the federalization and deployment of the National Guard in Los Angeles, Portland, and Chicago, the U.S. Department of Justice (DOJ) has repeatedly argued that the courts should defer to the president’s determination that protests against ICE activity in those cities has rendered the government “unable with the regular forces to execute the laws of the United States” and constitutes a form of “rebellion against the authority of the Government of the United States” – two of the possible conditions to federalization under 10 U.S.C. § 12406. The courts have rightly pushed back on such blind deference, with the 9th Circuit rejecting the DOJ’s argument that the president’s determination is unreviewable.
While not deferring completely to the president, courts have nevertheless given DOJ significant deference, in accordance with how they have historically treated the president’s determinations regarding exigencies that threaten national security or involve foreign policy. Even applying such deference, however, lower courts have concluded, at least preliminarily, that the president’s determination about the situation in U.S. cities where he has sought to deploy the National Guard does not reflect “a colorable assessment of the facts and law within a ‘range of honest judgment.’”
This hesitation to defer to the president’s determination is warranted, not only because, in the words of Judge Karin Immergut in the Oregon case, that presidential determination was “simply untethered to the facts,” but also because the reasons for historical deference to the judgment of the Executive Branch in matters of national security and foreign policy have been severely undermined during the first eight months of the Trump administration.
Deference to the president based on his superior access to intelligence information provided by seasoned intelligence analysts and counterterrorism and counterintelligence experts is no longer warranted where: (1) many of these experts have been fired or stripped of their security clearances for political and retaliatory reasons; (2) presidential determinations have been contrary to the considered assessments of the intelligence community (for example, contrary to Trump administration claims regarding the Venezuelan criminal gang Tren de Aragua (TDA), the declassified National Intelligence Council assessment that “the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in theUnited States”); and (3) the administration has pushed the envelope on compliance with court orders and then sought to shield itself from review by invoking deference in matters of foreign policy and national security.
A deep dive into the controversy over the president’s invocation of the Alien Enemies Act to spirit away alleged members of Tren de Aragua to an El Salvadoran terrorist prison without any notice or opportunity to be heard illustrates these points. I wrote about this for Georgetown Law’s Journal of National Security Law and Policy, which is available in full here:
