[00:00:01] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
Before we proceed, can I just confirm Judge Bennett?

[00:00:05] Speaker 03:
Can you hear us?

[00:00:07] Speaker 01:
I can.

[00:00:07] Speaker 01:
Can you hear me, Judge Miller?

[00:00:09] Speaker 03:
Yes.

[00:00:09] Speaker 03:
Thank you.

[00:00:10] Speaker 03:
Great.

[00:00:11] Speaker 03:
All right.

[00:00:11] Speaker 03:
This is the time set for argument in Newsom against Trump.

[00:00:15] Speaker 03:
Mr. MacArthur.

[00:00:17] Speaker 04:
Thank you, Judge Miller.

[00:00:18] Speaker 04:
I may please the court.

[00:00:19] Speaker 04:
Eric MacArthur for the federal government.

[00:00:21] Speaker 04:
I would like to reserve five minutes for rebuttal, if I may.

[00:00:26] Speaker 04:
The district court in this case

[00:00:27] Speaker 04:
entered an extraordinary and at the time unprecedented order in joining the president from calling up the National Guard, a step the president had taken to protect federal personnel and property from violent riots in Los Angeles seeking to thwart enforcement of federal immigration law.

[00:00:48] Speaker 04:
This court correctly granted a stay pending appeal and should now vacate.

[00:00:52] Speaker 04:
the district court's erroneous order, which improperly second-guessed the president's judgment, interposed the court into the military chain of command, and placed federal officers in harm's way.

[00:01:05] Speaker 03:
Suppose that we were to agree with you that there was a sufficient basis under whatever the standard of review is for the president to call out the National Guard in June.

[00:01:18] Speaker 03:
Is there any time limit on how long they can stay federalized?

[00:01:25] Speaker 04:
So there's nothing in the statute that imposes a time limit, Judge Miller.

[00:01:29] Speaker 03:
And that is... Well, isn't, doesn't, I mean, the fact that the statute says the President is unable with the regular forces to execute the laws, not, you know, was at the, you know, some distant time in the past when he decided to federalize them, right?

[00:01:44] Speaker 03:
Doesn't that suggest that it has to be tied to what current conditions are?

[00:01:49] Speaker 04:
I don't think so, because the is in subsection three is a condition

[00:01:54] Speaker 04:
for calling up the guard, not for maintaining them in service.

[00:01:57] Speaker 04:
And if you look at prior versions of this statute, Judge Miller, you'll see that prior versions did have a time limit.

[00:02:04] Speaker 04:
And prior versions of this statute, for example, said that they could only be in federal service for nine months.

[00:02:10] Speaker 04:
Congress removed that time limit from the statute, and I think that's a pretty clear signal that Congress left to the President's discretion

[00:02:18] Speaker 04:
to make the determination of when the danger has sufficiently abated that he can release the officers back to state, the National Guardsman back to state control.

[00:02:28] Speaker 01:
So, counsel, let me follow up.

[00:02:30] Speaker 01:
Can you hear me?

[00:02:31] Speaker 04:
I can.

[00:02:31] Speaker 04:
Yes, Judge Bennett.

[00:02:32] Speaker 01:
All right.

[00:02:33] Speaker 01:
So let me follow up on Judge Miller's question.

[00:02:36] Speaker 01:
Let's assume that there was a lawful call-up.

[00:02:41] Speaker 01:
Do the call-ups have to have a temporal limit?

[00:02:44] Speaker 01:
Can the president just say they're called up without putting an end date on it?

[00:02:48] Speaker 04:
I think he can do that.

[00:02:49] Speaker 04:
Yes, I think this leaves to the president's discretion to determine.

[00:02:53] Speaker 01:
So let's so so let's let's say the president did that.

[00:02:59] Speaker 01:
And let's say hypothetically, we were to continue to reject your argument that the call up decision of the president is entirely unreviewable.

[00:03:10] Speaker 01:
So let's just have those as predicates.

[00:03:13] Speaker 01:
Would it be your view that

[00:03:16] Speaker 01:
No matter how much conditions on the ground changed, there would be no ability of, for example, the district court could review, say, in a month, six months, a year, five years, whether the conditions still support that the president was unable with the regular forces to execute faithfully the laws of the United States.

[00:03:42] Speaker 04:
Yes, Judge Bennett, I just don't see a basis in the text of the statute for a court to be making that determination.

[00:03:51] Speaker 04:
The court would have to, in essence, make up its own standard about when the National Guardsmen have to be released from service because there's nothing in the statute, unlike the prior versions, that speaks to that question.

[00:04:03] Speaker 01:
So if, and I know I'm mixing statutes and times, but if, for example, this statute were in effect at the founding and President Washington had called up militia to deal with the Whiskey Rebellion, notwithstanding the Whiskey Rebellion having gone away, that they could be called up forever.

[00:04:29] Speaker 01:
without judicial review.

[00:04:30] Speaker 01:
They could stay called up forever without judicial review.

[00:04:33] Speaker 04:
I don't think there would be judicial review of that.

[00:04:36] Speaker 04:
I do think the president, who again we should remember, independently takes an oath to uphold the law, you know, could be deemed to have abused his discretion in that sort of instance.

[00:04:47] Speaker 04:
But I don't see how that can be made a proper subject of judicial review under this statute.

[00:04:52] Speaker 04:
And of course, that's not the question presented in this case.

[00:04:55] Speaker 04:
They have raised that issue in the district court.

[00:04:58] Speaker 04:
They have sought to challenge

[00:04:59] Speaker 04:
the order extending the period of service for a very small number of the federalized guardsmen, and that's something that they can raise on remand.

[00:05:08] Speaker 04:
Of course, the only issue before this court is whether the president properly federalized the guard in the first place back in June.

[00:05:17] Speaker 01:
So would you, would you agree that your argument wouldn't, the argument you just made wouldn't go to a subsequent, let's say the president's original call up had a termination date.

[00:05:31] Speaker 01:
Would you agree that your argument wouldn't apply to a subsequent order of the president extending the date?

[00:05:39] Speaker 04:
I think a subsequent order of the president extending the date.

[00:05:43] Speaker 04:
would not be subject to judicial review, even if you thought that the initial order was subject to judicial review.

[00:05:51] Speaker 04:
Because again, Section 12406 only speaks to the calling up of the guard.

[00:05:57] Speaker 04:
There's not a word in the statute that talks about how long they can remain in federal service.

[00:06:06] Speaker 04:
There are no further questions on that issue.

[00:06:09] Speaker 04:
I would like to just say a few words about the one issue on which we do disagree with the court's analysis in the stay opinion, and that's whether or not the statute vests the decision to call up the guard in the first instance.

[00:06:25] Speaker 04:
in the president's unreviewable discretion.

[00:06:28] Speaker 04:
And the first thing I would say about that is the court doesn't necessarily need to decide that question in this case in the way that it did in the stay opinion.

[00:06:37] Speaker 04:
The court could simply say that assuming for purposes of decision that there is some limited judicial review here,

[00:06:44] Speaker 04:
that review would have to be extremely deferential and the difference here isn't overcome and just be agnostic on the question of whether or not the statute best this in the president's unreviewable discretion.

[00:06:55] Speaker 04:
But if the court does decide that it's necessary to reach and decide that question,

[00:07:01] Speaker 04:
We would urge the court to revisit revisit the analysis in the state.

[00:07:05] Speaker 01:
Okay.

[00:07:06] Speaker 01:
Council, let me ask you a question about a sentence in Martin V, where the court said every public officer is presumed to act in obedience to his duty.

[00:07:19] Speaker 01:
until the contrary is shown and a for she or I, this presumption ought to be favorably applied to the chief magistrate of the union.

[00:07:30] Speaker 01:
So what did the court in your view mean when it used the words until the contrary is shown?

[00:07:37] Speaker 01:
What does that mean?

[00:07:39] Speaker 04:
Well, I think Judge Bennett that that part of the opinion was addressing the contention that defendant Martins

[00:07:45] Speaker 04:
Pleading was insufficient, because it had not set forth the factual basis for the president's determination that there was a foreign invasion in that case.

[00:07:56] Speaker 04:
And the court said, no, the pleading is sufficient.

[00:07:58] Speaker 04:
The pleading doesn't have to get into that, because there is this presumption of regularity that we presume that the president has made the determination.

[00:08:05] Speaker 03:
And so the presumption of regularity, I mean, it's not an axiom of regularity.

[00:08:12] Speaker 03:
I mean, that suggests that

[00:08:14] Speaker 03:
it is possible to overcome it, right?

[00:08:18] Speaker 04:
I think what the court was talking about there, though, was whether the president had made a determination.

[00:08:22] Speaker 04:
So maybe if there was something that overcame the presumption that he had not actually made a determination about whether one of the listed exigencies existed, there could be judicial review of that.

[00:08:33] Speaker 04:
I actually don't take Martin to speak to that question.

[00:08:36] Speaker 04:
But Martin says expressly that the president's determination of whether

[00:08:41] Speaker 04:
the exigency has arisen.

[00:08:43] Speaker 04:
So when the president has made a determination that one of the enumerated exigencies exists, that that decision is vested in his soul and exclusive discretion and is conclusive on all other persons, including the courts.

[00:08:57] Speaker 00:
Well, actually, Martin versus Mott, the court says when the statute gives a discretionary power that is then based on certain facts.

[00:09:08] Speaker 00:
So the court is drawing a distinction between

[00:09:11] Speaker 00:
the discretionary decision about when an exigency exists, whether to call forth the militia.

[00:09:18] Speaker 00:
But there are two different decisions being made.

[00:09:21] Speaker 00:
And I don't see the court saying that the underlying determination, which is a factual question of whether the exigency exists, is inherently discretionary.

[00:09:34] Speaker 04:
I took the court in that passage to be saying that all of it

[00:09:37] Speaker 04:
is vested in the president's unreviewable discretion.

[00:09:41] Speaker 04:
And that's why it wasn't even necessary for defendant Martin to plead anything about whether a determination had been made or what facts underlay that determination.

[00:09:51] Speaker 00:
Well, how do you deal with Sterling versus Constantine then, where the court, again, then says, as the factual predicate, even discussing Martin versus Mott is essentially a mixed question of law and fact that is subject to some review?

[00:10:07] Speaker 04:
To set the table on this, I broadly agree with the analysis in the state opinion about both Martin and Luther.

[00:10:13] Speaker 04:
And I do think it is, when we get to Sterling, is where I think the court's analysis respectfully went astray.

[00:10:20] Speaker 04:
Because in Sterling there were two issues that the court was discussing.

[00:10:25] Speaker 04:
One of them was whether a military exigency existed that warranted calling up military aid in support of

[00:10:33] Speaker 04:
civilian authorities.

[00:10:35] Speaker 04:
That's question one, and that's the question in this case.

[00:10:38] Speaker 04:
Second issue in Sterling was what was the scope of the measures that they could permissibly undertake once the military had been deployed?

[00:10:47] Speaker 04:
Okay, and on that first question about whether the military exigency existed, the court actually reaffirmed Martin and Luther, cited both Martin and Luther and said, the executive is appropriately vested with the discretion to determine

[00:11:03] Speaker 04:
Whether an exigency requiring military aid has arisen, his decision to that effect is conclusive.

[00:11:10] Speaker 00:
Well, how do you deal with the fact that in that case, what happened was the district court actually made on a contested record findings of fact that the claimed exigency as a factual matter didn't exist.

[00:11:22] Speaker 00:
The court reviewed that decision, said there was no clear error.

[00:11:26] Speaker 00:
and affirmed on that ground that there was a finding of fact by the district court in that case that the claim exigency didn't exist.

[00:11:34] Speaker 04:
So I don't understand the Supreme Court's opinion in that case to have affirmed that decision.

[00:11:40] Speaker 04:
Again, at page 401 of the opinion, this is what the court said.

[00:11:43] Speaker 04:
The question here is not of the power of the governor to proclaim that a state of insurrection or tumult or riot or breach of the peace exists and that it is necessary to call military force

[00:11:54] Speaker 04:
to the aid of the civil power.

[00:11:56] Speaker 04:
That's not what they were reviewing.

[00:11:58] Speaker 04:
They said that the governor's conclusion in that respect was conclusive.

[00:12:03] Speaker 01:
Sorry to interrupt you, but let me go to the page before you're on.

[00:12:09] Speaker 01:
Let me go to page 400.

[00:12:10] Speaker 01:
It does not follow from the fact that the executive has this range of discretion

[00:12:16] Speaker 01:
deemed to be a necessary incident of his power to suppress disorder, that every sort of action the governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts otherwise available, is conclusively supported by mere executive fiat.

[00:12:38] Speaker 01:
How do you reconcile your position on what the court is saying in Sterling with what seems to me to be a very clear sentence that there is discretion, but that doesn't mean the courts have to turn a blind eye to executive fiat.

[00:12:53] Speaker 04:
So I read that sentence to be discussing what measures the military can deploy once they have been called up.

[00:13:02] Speaker 04:
For example, in the next paragraph, I believe it's the next paragraph, it talks about whether the military can be used to effectuate arrests and the actual question presented in the case

[00:13:13] Speaker 04:
was whether the governor could in essence declare martial law and by military order limit oil production in the state.

[00:13:21] Speaker 04:
So it wasn't a question of is there an exigency that requires military aid.

[00:13:26] Speaker 04:
It was what are the measures that can be taken?

[00:13:29] Speaker 04:
And does that extend to having a military order limiting oil production?

[00:13:34] Speaker 04:
And we do have another case that's coming up behind this one about the measures that are taken.

[00:13:40] Speaker 04:
But this case is solely about whether the exigency warranting calling up the National Guard existed in the first place.

[00:13:46] Speaker 00:
It literally says there was no exigency.

[00:13:49] Speaker 00:
I mean, the court at 404 is affirming the district court's finding that there was no military necessity, no exigency, which justified.

[00:13:59] Speaker 00:
the executive action.

[00:14:00] Speaker 04:
I think it's that last part is the key, Judge Sung, which justified that action.

[00:14:04] Speaker 04:
The military exigency that they didn't question, they said the governor's determination was conclusive, couldn't justify the measures taken to limit oil production.

[00:14:16] Speaker 03:
Suppose that we, I mean, I guess if we were to agree with you on this, that's the end of the case, but suppose we don't.

[00:14:23] Speaker 03:
And the state opinion was

[00:14:29] Speaker 03:
somewhat ambiguous on exactly what level of interference with the normal execution of the laws is required to satisfy 12406 paragraph 3.

[00:14:42] Speaker 03:
Why shouldn't we read paragraph 3 in conjunction with paragraphs 1 and 2 which refer to really significant events and invasion or rebellion that are very disruptive of the normal functioning of government as requiring something

[00:14:58] Speaker 03:
of comparable magnitude in terms of the disruption to ordinary execution of the laws.

[00:15:05] Speaker 04:
I don't have any objection to that.

[00:15:07] Speaker 04:
I do think you can read subsection three in light of subsections one and two, and in light of those provisions, say, as the panel opinion did say, that it needs to be some unusual exigency, something out of the ordinary.

[00:15:22] Speaker 04:
And I think the panel's specification of the standard

[00:15:26] Speaker 04:
It being a significant impediment, something that's more than minimal, I don't have any problem with that being a standard under subsection three.

[00:15:33] Speaker 03:
Okay, but then I guess the question is why is a couple of hundred people engaging in disorderly conduct and throwing things out of building over the course of two days of comparable severity to an invasion or a rebellion?

[00:15:52] Speaker 04:
Well, because violence is being used to thwart enforcement of federal law.

[00:15:58] Speaker 03:
But violence is used to thwart enforcement of federal law all the time.

[00:16:01] Speaker 03:
The FBI goes to arrest somebody and he shoots at them or tries to run away.

[00:16:09] Speaker 03:
That happens every day.

[00:16:10] Speaker 04:
Right.

[00:16:11] Speaker 04:
But this is well beyond the sort of everyday resistance that you see to federal law enforcement.

[00:16:17] Speaker 04:
On the evening of Friday, June 6th, you had a crowd of roughly 800 people.

[00:16:22] Speaker 04:
that assembled around the federal building and for five plus hours essentially laid siege to that building, throwing objects, concrete chunks at law enforcement officers attempting to use these large commercial dumpsters as a battering ram to breach the building.

[00:16:40] Speaker 04:
That went on for five hours that night.

[00:16:42] Speaker 04:
The crowd refused to disperse even after the LAPD showed up and declared an unlawful assembly and ordered them to disperse.

[00:16:50] Speaker 04:
The next day,

[00:16:52] Speaker 04:
They actually brought up from San Diego 110 customs and border protection officers as a precautionary measure in light of the violence on Friday night, diverting those officers from their normal law enforcement duties.

[00:17:05] Speaker 04:
And even with those reinforcements, instead of being able to carry out the enforcement operation in paramount on Saturday, you had

[00:17:13] Speaker 04:
Seven hours of nonstop fighting is what the Santa Cruz Declaration says.

[00:17:18] Speaker 04:
Seven hours of nonstop fighting where they are again throwing objects, launching incendiary devices at federal officers, surrounding an officer in her vehicle and pounding on the vehicle and pummeling the vehicle with stones.

[00:17:33] Speaker 04:
This is well beyond the ordinary resistance that law enforcement encounters every day.

[00:17:39] Speaker 01:
And I take it that the government's argument here is that even if the panel were to reject the argument that the president's determination is unreviewable, this would be an area where the alternative of significant discretion would come into play.

[00:18:00] Speaker 04:
Absolutely, because the judgment that the president has to make under subsection three, whether this is minimal everyday interference or whether it rises to the level of significant interference, is really a question of judgment, a question of degree, and not a question of law for a court.

[00:18:19] Speaker 04:
And that's why Congress vested this decision in the president's discretion.

[00:18:25] Speaker 03:
Can you address the, there's an argument in the, it's the amicus brief from Professor Graber that suggests that the historical understanding of unable to execute the laws was, really turned on the question of like are the courts open and functioning?

[00:18:41] Speaker 03:
Do you have a response to that?

[00:18:45] Speaker 04:
I think there's not any textual hook in this statute for that conclusion that you'd have to find that the courts are no longer functioning.

[00:18:54] Speaker 04:
There is language similar to that effect in the Insurrection Act, for example.

[00:18:59] Speaker 04:
I don't know that that provision, even with that language, requires the courts to be closed before the president could invoke the Insurrection Act, but at least that statute has language talking about the ordinary course of

[00:19:11] Speaker 04:
judicial proceedings.

[00:19:12] Speaker 04:
There's no language like that in section 12406.

[00:19:23] Speaker 04:
So as you may recall, the district court in construing subsection three said that essentially law execution has to be wholly thwarted.

[00:19:32] Speaker 04:
in order for the president to be able to call up the guard under subsection three, such that if any law enforcement at all is able to proceed in the face of mob violence, the president can't call up the guard.

[00:19:44] Speaker 04:
The court correctly rejected that interpretation in the stay opinion and not even the plaintiffs defend it.

[00:19:51] Speaker 04:
Instead, what the plaintiffs argue is that subsection three has some sort of exhaustion requirement, where the president has to consider, I guess, every other law enforcement

[00:20:01] Speaker 04:
agent in the country and is unable to call up the National Guard to deal with a problem in LA unless he concludes that that problem can't be adequately addressed by bringing in every other law enforcement agent in the country.

[00:20:15] Speaker 03:
It does say with the regular forces, right?

[00:20:18] Speaker 03:
That's correct, and I would read... But you think that means with the regular forces in that particular geographic area?

[00:20:24] Speaker 04:
I think that is the most natural reading of the statute, Judge Miller, that it's talking about the law enforcement officers who regularly enforce the laws at issue in the place where they're being opposed.

[00:20:35] Speaker 04:
But even if you read it more broadly to say this is all of the federal law enforcement officers at the president's disposal, disposal nationwide, I don't think it would change the analysis because it can't be the case that the president can only invoke subsection three when he can't address a particular problem

[00:20:54] Speaker 04:
with every law enforcement agent in the country.

[00:20:56] Speaker 04:
That would, in effect, render subsection three a nullity.

[00:21:00] Speaker 04:
And it fails to account for the basic reality that resources are finite.

[00:21:06] Speaker 04:
And so if the president calls in law enforcement agents from other parts of the country to deal with the situation in LA, that means the law is going un-executed in those other places.

[00:21:18] Speaker 04:
That's, for example, exactly what happened when they brought up those 110

[00:21:22] Speaker 04:
CBP officers from San Diego to address the situation in Los Angeles.

[00:21:28] Speaker 04:
So I think this is a statute that vests that judgment in the president's discretion, which is consistent with case law in many different areas that talks about these sort of executive branch resource allocation decisions being classically the subject of executive branch discretion and classically unsuited for judicial review.

[00:21:48] Speaker 03:
Can you just, I mean, this I guess goes outside of the record of the order from June that is before us, but just can you tell us what the current state of things is in terms of how many National Guard forces are still federalized and deployed in Los Angeles?

[00:22:09] Speaker 03:
And I believe there was some mention in Judge Breyer's orders that the Marines had been called in.

[00:22:17] Speaker 03:
deployed.

[00:22:18] Speaker 03:
What is the current situation?

[00:22:20] Speaker 04:
My understanding is there are no Marines currently deployed in Los Angeles and

[00:22:24] Speaker 04:
the National Guardsmen had been dramatically drawn down.

[00:22:27] Speaker 04:
So initially, it was in the range of 4,100 National Guardsmen from California who had been called up.

[00:22:33] Speaker 04:
And today, it's about 300 that had been called up, with 100 or so deployed in the Los Angeles area.

[00:22:41] Speaker 04:
And if they're not, oh, I'm sorry.

[00:22:44] Speaker 01:
No, I was just going to, I was, sorry, I was just going to say, my understanding is now the order is essentially extended to February, is that right?

[00:22:53] Speaker 04:
That's consistent with my understanding.

[00:22:54] Speaker 01:
Judge Bennett.

[00:22:56] Speaker 01:
All right.

[00:22:56] Speaker 01:
Sorry, Judge Miller.

[00:22:57] Speaker 03:
I was just going to ask if the number were to increase, that's not a new calling out that would be.

[00:23:04] Speaker 03:
I guess you don't think that any calling out is subject to review, but conceding for purposes of this question that the initial calling out is subject to review, if the number were to go back up,

[00:23:19] Speaker 03:
You think that wouldn't be reviewable because it's just an extension of the initial call?

[00:23:23] Speaker 04:
No, I think if the president called up a new guardsman who had previously been returned to state control, that would be under Section 12406.

[00:23:32] Speaker 04:
It would have to be supported by a determination under Section 12406.

[00:23:36] Speaker 04:
And if that's reviewable, that would be reviewable as a new call-up order.

[00:23:43] Speaker 03:
Any further questions?

[00:23:45] Speaker 01:
No.

[00:23:45] Speaker 01:
Thank you, Judge Miller.

[00:23:47] Speaker 03:
OK.

[00:23:47] Speaker 03:
Thank you.

[00:23:52] Speaker 03:
Mr. Harbert.

[00:24:02] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:24:05] Speaker 02:
In granting a stay pending appeal, the Court recognized a need for judicial review but did not engage in a detailed parsing of the statutory text at that preliminary phase of proceedings.

[00:24:16] Speaker 02:
This appeal provides an opportunity for the court to reaffirm its just disability analysis and to clarify the scope of limits under Section 12406, including by addressing defendants' extraordinary argument that there is no time limit whatsoever on the scope of the federalization under the statute.

[00:24:33] Speaker 02:
As to just disability, the court was absolutely right in its stay order to recognize a need

[00:24:38] Speaker 02:
for judicial review to ensure that defendants' actions comport with the limited authority provided by Congress pursuant to its Article 1 militia clause power to commandeer State National Guard personnel for federal service.

[00:24:52] Speaker 02:
The evolving circumstances over the past four months only highlight the importance of a judicial check in this area.

[00:24:58] Speaker 02:
Defendants have expanded their deployments well beyond Los Angeles,

[00:25:01] Speaker 02:
They've repeatedly extended the federalization of California's National Guard from 60 days to 150 days, and as of last week, 238 days.

[00:25:12] Speaker 02:
They've promised more of the same to come in ensuing weeks in other communities in the circuit and across the country.

[00:25:22] Speaker 01:
Do you have any reason to doubt your friend's representation that we're talking about, about 400 now?

[00:25:30] Speaker 02:
About 400 California National Guard troops.

[00:25:34] Speaker 01:
Yes.

[00:25:36] Speaker 02:
Our understanding is that it's that it's that it's 300 that there were three.

[00:25:41] Speaker 01:
I'm sorry if I misquoted your friend.

[00:25:44] Speaker 02:
That's correct.

[00:25:44] Speaker 02:
And our understanding is that 215 have been sent out of state hundreds of miles away.

[00:25:51] Speaker 02:
many to Portland, some to Chicago, that there are about 85 remaining in Los Angeles, which I think underscores the point we've raised in our pending motion to vacate before the court, that there is no longer the same pressing need that defendants identified in June that would support continuing stay pending appeal.

[00:26:11] Speaker 03:
And what do you say to the argument that we just heard, that there's a textual standard for when the president may call

[00:26:19] Speaker 03:
Guernsman into federal service.

[00:26:22] Speaker 03:
And as to the numbers, there's a textual commitment to the president's discretion on that.

[00:26:28] Speaker 03:
But as to the duration, the statute is just silent.

[00:26:30] Speaker 03:
So what would be the rule that we'd be applying?

[00:26:34] Speaker 02:
Your Honor, I disagree that the statute is silent.

[00:26:38] Speaker 02:
I do think the text structure and the analysis in this court's stay opinion, especially when read in light of the background constitutional framework, does not support defendants

[00:26:48] Speaker 02:
Assertion that after the guard has been called up they can remain in federal service indefinitely and so as to the text think Your honor point pointed to the present tense in the the text of section 12406 On is unable the structure and the court's analysis in its stay opinion emphasized that section 12406 is designed to address extreme exigencies of

[00:27:15] Speaker 02:
akin to rebellions or invasions, I think it would be pretty extraordinary to suggest that this authority to call forth state personnel, personnel that the founding era evidence makes quite clear that our framers expected state militia personnel to ordinarily be under control of the states, that some exigency can be invoked and then provide a basis for permanently or indefinitely keeping the guard

[00:27:42] Speaker 02:
under state control and in terms of the standard I think the court could apply is could look to the same standard it looks to deciding whether section 12406 is satisfied.

[00:27:52] Speaker 01:
Council is that question before us with regard to the federal government's

[00:28:02] Speaker 01:
appeal, is anything before us other than was the original order, can it stand?

[00:28:13] Speaker 01:
I mean, are extensions or the law relating to extensions or facts that occur on the ground after the district court issued the order that was appealed, are any of those issues actually before us in this appeal?

[00:28:31] Speaker 02:
not in the appeal of the district court's original injunction.

[00:28:34] Speaker 02:
Of course, they're at issue in the pending motion to vacate the stay that we filed a couple of weeks ago.

[00:28:41] Speaker 02:
But I will say the legal issue about the nature of the circumstances that justify invoking Section 12406 does have a direct connection to this argument that you've heard on the other side about whether there is a time limit under the statute, because in recognizing that

[00:28:59] Speaker 02:
The statutory criteria require a showing of extreme exigent circumstances akin to a rebellion or an invasion.

[00:29:06] Speaker 02:
I think it naturally follows from that that the federalization cannot just be indefinite in duration.

[00:29:12] Speaker 02:
It's designed to address extreme circumstances under Section 124063, where the regular forces, which we understand to mean federal civilian personnel, are unable to respond to the emergency.

[00:29:26] Speaker 01:
So counsel, I'm not certain that those issues are before us, but let's assume for the sake of argument that they are.

[00:29:36] Speaker 01:
So would it be your view that let's say that a court determined in the face of legal action that the president's initial call up under subsection three were justified?

[00:29:53] Speaker 01:
Is it California's view that as a theoretical matter, California could come back to the district court every day and say, you found that it was justified on September 1st, but we're now at September 4th and it's no longer justified.

[00:30:12] Speaker 01:
And if you lose on September 4th, we're now at September 7th and it's no longer justified.

[00:30:18] Speaker 02:
No, Your Honor, we don't take that extreme view.

[00:30:20] Speaker 01:
We don't think the statute... So tell me what your view would be as to if there were a finding that it were initially justified and your view is that it is justiciable and can be determined at some point as to whether it's continuing, the justification continues, how often could the court get involved?

[00:30:46] Speaker 02:
Your honor, to step back, we think that the appropriate approach here is to accord an appropriate level of deference and discretion to the president in determining whether the exigent circumstances that justified the original federalization continue to exist.

[00:31:02] Speaker 02:
We acknowledge some need for flexibility on the part of defendants in this area.

[00:31:07] Speaker 02:
But I think there has to come a limit.

[00:31:10] Speaker 02:
And when it is no longer reasonable to conclude,

[00:31:13] Speaker 02:
that the basis for the federalization continues to exist.

[00:31:15] Speaker 02:
And this gets back to your question, Judge Miller, about the standard courts could apply.

[00:31:19] Speaker 02:
I think you could apply a reasonable good faith standard in asking whether the exigent circumstances that initially supported the federalization continue to exist.

[00:31:28] Speaker 02:
In our view, the answer to that question is they no longer reasonably exist.

[00:31:33] Speaker 02:
And I realize I'm getting into some of the issues discussed in the motion to vacate rather than the appeal.

[00:31:40] Speaker 02:
But in our view, when you have

[00:31:42] Speaker 02:
The circumstances that existed on the ground in Los Angeles, June 6th and 7th, they have not recurred.

[00:31:49] Speaker 02:
We've cited declarations from state and local law enforcement officials as to conditions on the ground in Los Angeles.

[00:31:57] Speaker 02:
You also have defendants' own words and their own actions.

[00:32:01] Speaker 02:
They've repeatedly acknowledged the conditions on the ground have changed substantially.

[00:32:06] Speaker 02:
including the risk to federal personnel in Los Angeles.

[00:32:10] Speaker 02:
And then most tellingly, I think, was the action of a couple of weeks ago where they professed an intent to send all 300 federalized California Guard troops 800 miles away to Portland.

[00:32:22] Speaker 02:
and then proceeded to send 215 of those 300 troops and presumably would have sent the entire contingent if they had not been enjoined by the Federal District of Oregon.

[00:32:32] Speaker 02:
We think in those circumstances.

[00:32:34] Speaker 01:
So, Council, let me ask you a question about something that definitely is not before us.

[00:32:42] Speaker 01:
Would, in California's view, the propriety of sending the California Guardsmen

[00:32:52] Speaker 01:
to, or guards men and women, to Portland be challengeable in front of Judge Breyer?

[00:33:02] Speaker 02:
Your Honor, there's certainly a factual nexus to the case before Judge Breyer, but we have not and do not intend to challenge it in that court.

[00:33:12] Speaker 02:
We're moving forward.

[00:33:13] Speaker 02:
We've joined the suit in the District of Oregon.

[00:33:18] Speaker 01:
Okay.

[00:33:19] Speaker 01:
Thank you.

[00:33:20] Speaker 03:
And can I ask you so you mentioned this is sort of going I guess logically back a step to the question of what the standard of review is of the federalization decision And you mentioned sort of reasonable good faith we Said something sort of like that in the stay order.

[00:33:39] Speaker 03:
Did you do you think that's the right standard to review or?

[00:33:42] Speaker 03:
What are you asking us to apply?

[00:33:45] Speaker 02:
Your Honor, we continue to have some disagreement with the way the Court specified the standard of review, in particular the colorable basis language, which seems overly deferential to the President in circumstances like this one, where you don't have some of the same sensitive foreign policy or national security concerns that were at issue in a case like Martin v. Mott.

[00:34:08] Speaker 02:
I really don't want to overstate the importance of our disagreement with that standard, because as we understand what the court was saying in its stay opinion, it was talking about deference to defendants as to the application of the statute to the facts of a given case, not deference to defendants in terms of the threshold purely legal question about how to interpret the plain terms on the face of the statute.

[00:34:31] Speaker 02:
And that is the area that we understand is the core zone of disagreement between the parties.

[00:34:37] Speaker 02:
So if I could, if it'd be helpful, I can turn to.

[00:34:42] Speaker 02:
exactly how plaintiffs would suggest the court construe the key terms in section 124063, unable with the regular forces to execute the laws.

[00:34:53] Speaker 02:
And as we see it, that language gives rise to three related requirements.

[00:34:58] Speaker 02:
So the first, as the court already referenced in its June stay order, would be showing that there is an exigency or other unusual circumstance akin to a rebellion or an invasion in terms of

[00:35:10] Speaker 02:
interference with the ordinary functioning of government.

[00:35:14] Speaker 02:
Second related requirement would be showing that the level of that interference is substantial, again, akin to what you would expect to see during a rebellion or an invasion.

[00:35:24] Speaker 02:
And the third would be that the federal government is unable to overcome that level of interference with the regular forces, meaning civilian as opposed to military personnel.

[00:35:38] Speaker 02:
We don't think that the record

[00:35:41] Speaker 02:
Satisfies those requirements or the record shows that defendants have not satisfied those requirements here Before the district court defendants introduced two declarations.

[00:35:53] Speaker 02:
The first is the Nell declaration That's at er 39 to 42 that discusses only the logistics of calling out the guard deploying them in La We don't understand that to be relevant to the statutory question

[00:36:06] Speaker 02:
The second is the Santa Cruz declaration from the head of ice removal operations in the Los Angeles area.

[00:36:12] Speaker 02:
That's at E.R.

[00:36:12] Speaker 02:
53 to 65.

[00:36:14] Speaker 02:
It walks through the conditions on the ground in L.A.

[00:36:17] Speaker 02:
at the time, on June 6th and 7th, and describes certain forms of interference with the tasks performed by agents with two federal agencies, ICE and the Federal Protective Service.

[00:36:31] Speaker 02:
I think the closest that declaration comes to trying to satisfy

[00:36:37] Speaker 02:
textual standard I just mentioned under section 124063.

[00:36:40] Speaker 02:
It's at paragraph 33, this is ER 64, where Mr. Santa Cruz professes his belief that, quote, additional manpower and resources are needed to address the circumstances in Los Angeles.

[00:36:56] Speaker 02:
The problem as we see it is there is no effort whatsoever to explain why military forces

[00:37:02] Speaker 02:
where it was necessary for the federal government to rely on military forces to supply that manpower, those resources, when there are civilian law enforcement measures that are generally available to the federal government during emergency circumstances that would ordinarily supply that kind of additional manpower or personnel.

[00:37:27] Speaker 02:
And we know that there are those additional measures, such as calling on

[00:37:32] Speaker 02:
civilian personnel from other nearby cities or calling on personnel from other federal agencies because that's exactly what defendants have told the court in filings with the court.

[00:37:43] Speaker 02:
In particular, I point the court to docket 136.

[00:37:47] Speaker 02:
This is the opposition filed in response to our motion to vacate.

[00:37:52] Speaker 02:
Defendants attach two declarations from senior FPS officials who explain that

[00:37:59] Speaker 02:
In emergency circumstances, FPS has the capacity to surge personnel in response to exigencies by drawing on FPS agents from other cities.

[00:38:11] Speaker 02:
You can see that at docket 136, essay 11, 15, and again at 20.

[00:38:18] Speaker 02:
There's also an acknowledgement at essay 14 as to the ability of FPS to rely on personnel from other

[00:38:28] Speaker 02:
federal agencies, specifically ICE in times of emergencies.

[00:38:32] Speaker 02:
Now, those declarations go on to say that the federal government does not view these measures as long-term solutions.

[00:38:40] Speaker 02:
They see them as short-term emergency responses.

[00:38:45] Speaker 02:
And in the long-term, defendants say, those types of extraordinary measures stretch the FPS budget.

[00:38:54] Speaker 02:
They strain FPS staffing levels.

[00:38:57] Speaker 02:
But what we would respectfully suggest to the Court is that those may well be legitimate concerns.

[00:39:03] Speaker 02:
We have no reason to doubt that those are legitimate concerns.

[00:39:06] Speaker 02:
But they are not the concerns properly addressed through Section 12406.

[00:39:09] Speaker 02:
So as the Court recognized in its state order, Section 12406 is designed to address extreme exigencies akin to rebellions or invasions.

[00:39:19] Speaker 02:
There is another mechanism in our constitutional structure for the President to address

[00:39:25] Speaker 02:
long-term budgetary or staffing issues.

[00:39:28] Speaker 02:
It's to go to Congress and ask Congress to exercise its appropriations clause authority to give the president, give the executive branch increased resources so that it can staff up as it deems necessary.

[00:39:41] Speaker 02:
There's no history of using the National Guard personnel of commandeering state resources as a substitute for long-term budgetary or staffing issues.

[00:39:52] Speaker 02:
And we know that this is not just a theoretical possibility to go to Congress and get increased appropriations, because the president did that this year, just a few months ago.

[00:40:02] Speaker 02:
In July, the president prevailed upon Congress to vastly increase the budget of the Department of Homeland Security, including by literally tripling the budget of ICE, an unprecedented increase in the agency's history.

[00:40:16] Speaker 02:
So we respectfully submit on this record, especially in light of the concessions,

[00:40:21] Speaker 02:
you now have from defendants in this very case that there are alternative civilian law enforcement measures generally available in the face of exigent circumstances.

[00:40:32] Speaker 02:
And there's no explanation in the record, none, as to why those measures were unavailable or infeasible here.

[00:40:41] Speaker 03:
Can I ask you a couple of questions about the separate appeal of the Posse Comitatus Act?

[00:40:48] Speaker 03:
injunction stay question, and the first is just a factual question.

[00:40:54] Speaker 03:
We entered an administrative stay at the beginning of September.

[00:40:57] Speaker 03:
Since then, in your view, have any federal forces been engaged in conduct that would have violated the injunction had it not been stayed?

[00:41:08] Speaker 02:
Your Honor, I'm not aware of facts one way or the other as to that issue.

[00:41:16] Speaker 02:
Defendants have professed an intent to use the guard for those purposes in Los Angeles, and they've emphasized in their state papers before the court that there are two, I believe they're called mobile units that they have prepared that can be deployed into the field in the types of circumstances that we've challenged in that case.

[00:41:38] Speaker 02:
But as far as the current factual state of affairs, I'm just not in a position to address that.

[00:41:44] Speaker 03:
If you were to prevail in the the principle appeal the 12406 appeal I don't know whether it would technically moot the PCA appeal, but would there be there be much practical significance left to the question of the Posse Comitatus Act injunction I Believe there would be limited practical significance in terms of formal mootness.

[00:42:09] Speaker 02:
It's not something I've

[00:42:12] Speaker 02:
given a lot of thought to.

[00:42:13] Speaker 02:
I suspect that there may well be a mootness exception that could apply.

[00:42:21] Speaker 02:
We'd have to consider that and give it further thought in light of all of the moving pieces in the National Guard litigation, which has multiplied significantly since the last time we appeared before the court.

[00:42:33] Speaker 03:
And then I guess one other question on this, which is

[00:42:37] Speaker 03:
What what do you understand the injunction?

[00:42:40] Speaker 03:
That the posthumous act injunction to permit the federal the federalized guard and other federal military forces to do because the And I am specifically I'm asking about the last paragraph of the injunction that says you know

[00:42:58] Speaker 02:
prohibited from doing various things except to the extent that there's a valid constitutional or statutory exception and wasn't clear to me exactly what the order contemplated by that so what is your understanding of what's allowed your honor our understanding is that it allows protection of federal buildings so long as that that is not escalated to types of activities that would clearly contravene the posse commentatus acts of detentions and arrests and and so forth but if as long as

[00:43:28] Speaker 02:
that the guard is deployed merely for the protective purposes at federal buildings.

[00:43:34] Speaker 02:
We don't understand Judge Breyer's order to restrict that activity.

[00:43:37] Speaker 01:
Although that's not what the last paragraph of the order actually says, right?

[00:43:46] Speaker 02:
I think read in light of the district court's analysis as to this issue where the court

[00:43:55] Speaker 02:
specifically reserves and addresses separately the question of protection of federal property.

[00:44:02] Speaker 02:
That's how we understand the injunction.

[00:44:04] Speaker 01:
Although what the order actually says is they're enjoined from, I mean, some of what they're enjoined from is instructing, training, or using the Guard to execute the laws, including but not limited to things like

[00:44:24] Speaker 01:
security patrols, evidence collection, interrogation, or acting as informants.

[00:44:30] Speaker 01:
That's what it says, right?

[00:44:32] Speaker 02:
That's my understanding.

[00:44:34] Speaker 01:
So, for example, what does it mean that they are enjoined from interrogation?

[00:44:49] Speaker 02:
And I think it restricts the ordinary meaning of the term interrogation, which is, you know, that's a term that appears in the definition of prohibited Posse Comitatus Act activities in the Department of Defense instruction, DODI 3025.25, which is the longstanding Defense Department guidance on the scope of the Posse Comitatus Act.

[00:45:15] Speaker 02:
So I think you could look there into additional instructional manuals provided by the Defense Department themselves about the meaning of those restrictions, which have been in place for quite a long time.

[00:45:27] Speaker 01:
So like for evidence collection, if it wouldn't mean that they couldn't pick up a bag of methamphetamine that they saw while they were on patrol?

[00:45:40] Speaker 02:
Your Honor, I confess and not in a positive.

[00:45:43] Speaker 02:
I confess I'm not in a position to answer that percentage question today.

[00:45:53] Speaker 02:
If I could, Your Honors, with just the remainder of my time, turn briefly to the rebellion prong in section 124062.

[00:46:03] Speaker 02:
We think the court was right in its stay order to focus on section 124063, and that's principally because defendants have not put forward

[00:46:13] Speaker 02:
a credible understanding of the term rebellion in this litigation.

[00:46:19] Speaker 02:
We would respectfully ask the court to consider reaching and rejecting the defendant's interpretation of that term in its opinion here.

[00:46:28] Speaker 02:
And the reason is that we're continuing to see defendants rely on this interpretation in cases across the country.

[00:46:34] Speaker 02:
And we're concerned that the breadth of the definition of rebellion that the government has relied on, which includes

[00:46:43] Speaker 02:
on its terms any form of resistance to government laws and policies which would appear to encompass a range of First Amendment protected speech and protest activities there's a real risk that when you have senior executive officials discussing that broad definition and threatening to call in the military in response to it that protected speech activities will be chilled and

[00:47:13] Speaker 02:
So we would ask the court to join the Seventh Circuit in rejecting that view to ensure robust free speech protections continue across the country.

[00:47:26] Speaker 01:
You would concede that there may be more relevant legal determinations coming in the next couple of weeks on the Seventh Circuit case?

[00:47:40] Speaker 02:
There may well be, Your Honor.

[00:47:42] Speaker 02:
I think the Supreme Court takes different approaches to the type of emergency proceeding that's now pending.

[00:47:55] Speaker 02:
And then finally, Your Honors, just as to justiciability,

[00:47:59] Speaker 02:
Again, as I mentioned at the outset, we think the court got it exactly right in holding defendant's actions here subject to judicial review.

[00:48:08] Speaker 02:
As the court explained in its state order, statutory interpretation falls squarely within the ordinary zone of judicial review and the judiciary's responsibilities.

[00:48:20] Speaker 02:
We also think it would be exceptionally odd to

[00:48:24] Speaker 02:
consider the types of Militia Act determinations here non-justiciable in light of the constitutional and statutory history dating back to the very first Militia Act in 1792, which actually required judicial certifications before the President could invoke aspects of the Militia Act.

[00:48:40] Speaker 02:
Of course, that requirement was stricken from the statute, but it's very early founding era evidence that these are

[00:48:47] Speaker 00:
Exactly the types of questions that our founding fathers can consider to fall within the cognizance of the article 3 judicial power If the court has well It's not clear to me how we were dividing time between the 12406 appeal and the Motion first day of the permanent injunction on the PCA ultra various cause of action so if we're combining them

[00:49:16] Speaker 00:
May have another question in that because most of that focus has been on the 1246 issues on the PCA.

[00:49:23] Speaker 00:
Do you have a response?

[00:49:27] Speaker 00:
To the defendants argument about the willfulness element I do your honor we

[00:49:35] Speaker 02:
We acknowledge that the willfulness requirement appears in the text of the PCA.

[00:49:39] Speaker 02:
We don't think it's especially relevant to an assessment in this posture where we're seeking only perspective injunctive relief because as I understand defendants argument on this score, it's that their conduct wasn't willful because not because it wasn't intentional.

[00:49:56] Speaker 02:
It was directed by high ranking officials, but because there was a misunderstanding of the scope of what the PCA limits.

[00:50:04] Speaker 02:
But on a going forward basis, there will be no such confusion because the law has been clarified by Judge Breyer's opinion and presumably by an opinion reaching the merits from this court.

[00:50:15] Speaker 02:
So any violations would necessarily be willful because they would understand the legal requirements going forward.

[00:50:21] Speaker 00:
It's a little tricky, though, because your ultravarious argument is premised on the existing violation and a violation have occurred.

[00:50:30] Speaker 02:
I think as a formal matter, your honor, we're arguing that there is a sufficient risk of future violations to justify ultra various injunctive relief and the past violations, whether or not they satisfy the willfulness requirement, although we think they do for the reasons provided by the district court.

[00:50:49] Speaker 02:
the activities show, violating the substantive terms of the PCA, show a sufficient likelihood of, to put it another way, Your Honor, if you agree with everything about our PCA arguments except for the willfulness issue, just assuming that for sake of argument, then the willfulness issue would not be a barrier to granting perspective injunctive relief because that falls away on a going forward basis.

[00:51:13] Speaker 02:
There's a sufficient likelihood of recurring violations.

[00:51:16] Speaker 00:
And do you have any authority for that proposition?

[00:51:20] Speaker 02:
Your Honor, in our motion, we relied on common sense.

[00:51:24] Speaker 02:
We also pointed by analogy to the en banc decision in Dreyer, which was somewhat similar.

[00:51:29] Speaker 02:
It wasn't injunctive relief, but it was looking to the issue of prospective violations enforceable through suppression motions in criminal cases.

[00:51:41] Speaker 02:
So that, again, first of all, shows that the PCA has been deemed enforceable outside

[00:51:49] Speaker 02:
outside of criminal charges brought under the Posse Comitatus Act.

[00:51:55] Speaker 01:
And also- But you concede, counsel, as the United States argues, that you haven't cited a case nor are you aware of one in which any government has been enjoined or the federal government has been enjoined from enforcing based on a criminal statute.

[00:52:16] Speaker 02:
No, Your Honor, we disagree that there are a range of cases.

[00:52:22] Speaker 02:
We cite an example from the DC Circuit in our brief where criminal statutes have been enforced civilly through the Administrative Procedure Act.

[00:52:30] Speaker 02:
I certainly acknowledge this isn't an Administrative Procedure Act suit, although we do have a claim on that basis preserved in our complaint.

[00:52:37] Speaker 01:
But our point is- But has there ever been an injunction?

[00:52:41] Speaker 02:
Yes.

[00:52:42] Speaker 01:
Yes, under the- Involving

[00:52:46] Speaker 01:
a criminal statute?

[00:52:47] Speaker 02:
Yes.

[00:52:49] Speaker 01:
And what was the nature of the injunction?

[00:52:51] Speaker 02:
It was an injunction to enforce the Criminal Trade Secrets Act, which the Supreme Court in the Chrysler decision held is enforceable civilly, even though it's a criminal statute, through the Administrative Procedure Act.

[00:53:03] Speaker 02:
And courts, on a fairly regular basis, grant injunctive relief under the APA to enforce that criminal provision.

[00:53:12] Speaker 02:
Our point here, even though this isn't an APA suit, it's an ultra-vira suit, is if the Supreme Court hasn't been willing to draw the categorical, per se, line that defendants request between criminal and civil enforcement in the APA context, we see no reason to draw that categorical line when it comes to an ultra-vira's cause of action like ours.

[00:53:34] Speaker 01:
You agree that we are bound by the statement in the NRC case where the court said this type of claim is essentially a Hail Mary pass and in court, as in football, the attempt rarely succeeds.

[00:53:54] Speaker 02:
We agree that you're bound by the decision, of course, but we don't think the decision applies in the circumstances here for two reasons.

[00:54:03] Speaker 02:
NRC was a case where there was a, it was an ultra vera's claim in a case where there was an express statute there, the Hobbs Act, imposing limits on review and precluding review.

[00:54:14] Speaker 02:
And so what you had was Texas, the plaintiff there was trying to circumvent express limits on review under the Hobbs Act by simply styling its claim as an ultra vera's claim

[00:54:24] Speaker 02:
We don't have that here.

[00:54:25] Speaker 02:
The federal government has not pointed to any express limitations on the ability to bring in ultra various action enforcing the Posse Comitatus Act.

[00:54:33] Speaker 02:
Another important dimension is that the claim in NRC was purely statutory.

[00:54:39] Speaker 02:
But as this court, the en banc court made clear in the Dreyer decision, the Posse Comitatus Act is no ordinary statute.

[00:54:45] Speaker 02:
It's a statute with an important constitutional dimension.

[00:54:49] Speaker 02:
And under this court's precedent in Murphy versus Biden,

[00:54:51] Speaker 00:
Ultra Vera's claims are broadly available when a statute has constitutional implications I Think that NRC you argue in your briefing even assuming in the NRC standard applies here I understand your argument as to why it does not that the standard has been met NRC seems to identify

[00:55:14] Speaker 00:
Two requirements at least one is the attempted exercise of power specifically withheld or specifically prohibited And no other Avenue for judicial relief.

[00:55:24] Speaker 00:
Can you address those two requirements?

[00:55:27] Speaker 02:
Yes, your honor on the assumption that On the assumption of course that NRC is applicable which we disagree with

[00:55:35] Speaker 02:
And for the reasons provided by the district court, we think that restrictions in the PCA are clear and binding and were plainly violated here on a widespread basis.

[00:55:49] Speaker 02:
And as to the availability of another action for judicial review,

[00:55:58] Speaker 02:
I want to be somewhat careful on this, because we do have the APA alternative preserved in our complaint.

[00:56:03] Speaker 02:
We haven't moved on that to date.

[00:56:06] Speaker 02:
To the extent the court agreed that the APA provides an avenue for review, that may present a challenge on that second prong of NRC.

[00:56:15] Speaker 02:
But assuming the APA does not provide a challenge, a basis for review, then I think that would be satisfied, because there would be no other way to enforce the PCA in these circumstances.

[00:56:27] Speaker 02:
And just quickly on the Administrative Procedure Act issue, I know that in general it can feel a little odd to think about enforcement of the APA in a context like this one involving military orders, but the text of the APA actually expressly defines

[00:56:44] Speaker 02:
agency action subject to review to include exercises of military authority except in The field of conflict in a time of war which plainly would not fall into Again, we haven't we haven't rate moved on our APA claim to date But just for the court's awareness to the extent it considers that issue and evaluating the ultra vera as cause of action Okay, can you just briefly address the

[00:57:11] Speaker 03:
Why isn't 12406 an exception to the PCA?

[00:57:17] Speaker 03:
It says the President can call members of the Guard in such numbers as he considers necessary to execute the laws.

[00:57:24] Speaker 03:
How do we make sense of that if what they're doing is not executing the laws?

[00:57:31] Speaker 02:
Because the Posse Comitatus Act, as we understand it and courts have interpreted it, does not bar every form of law execution.

[00:57:41] Speaker 02:
It bars the execute the laws clause in the Posse Comitatus Act should be read in light of the clause forbidding actions as a Posse Comitatus.

[00:57:51] Speaker 02:
So the historic policing related activity performed by citizens in support of a local sheriff or constable, the way that's generally been understood is to bar law enforcement actions of the sort that police generally execute.

[00:58:06] Speaker 02:
So things like search and seizure,

[00:58:09] Speaker 02:
and interrogation, evidence collection, brandishing a weapon.

[00:58:12] Speaker 02:
And as the Department of Defense has explained, things like security patrols and crowd control, traffic control, the sorts of things that the Guard has been doing on a widespread basis in Los Angeles.

[00:58:24] Speaker 01:
Cancel to go to?

[00:58:26] Speaker 01:
Ask another question like judge Miller's question, even if your view California's view were arguable, given the standard for ultra Vera's relief, I'm having a hard time.

[00:58:44] Speaker 01:
seeing how the exception in 12406 to execute the laws wouldn't count as an exception under the PCA in an act of Congress, at least to the extent that there's enough ambiguity that this couldn't possibly be ultra-virus.

[00:59:07] Speaker 01:
I mean, I understand your argument, but I just, for me, I don't see it as nearly clear enough to justify Ultra Vera's relief given the language that Judge Miller cited that obviously is in the statute.

[00:59:23] Speaker 01:
Why am I wrong?

[00:59:25] Speaker 02:
Your Honor, I certainly want to acknowledge that if you're going to apply that Hail Mary standard from NRC, that makes it a much harder case

[00:59:34] Speaker 02:
for us in terms of the availability of ultra various relief.

[00:59:38] Speaker 02:
I do want to underscore, though, we have I think very powerful arguments that NRC was not addressing circumstances like those at issue here.

[00:59:46] Speaker 02:
And this court had very clear pre NRC precedent.

[00:59:49] Speaker 02:
The Murphy versus Biden case is the main one we have relied on that takes a broad view of the availability of ultra various relief.

[00:59:58] Speaker 02:
And so that decision would be binding

[01:00:01] Speaker 02:
on this panel unless NRC clearly abrogated it.

[01:00:05] Speaker 02:
And I don't think that standard is satisfied.

[01:00:07] Speaker 02:
As to the question about, again, why 12406 does not constitute an exception to the PCA, the exception has to be expressed under the PCA's plain terms.

[01:00:19] Speaker 02:
And as we read the PCA, it doesn't bar all law execution, all forms of law execution.

[01:00:26] Speaker 02:
And so that 12406 is,

[01:00:30] Speaker 00:
Authorizing law execution in general it's not authorizing the specific types of law enforcement activities that would fall within the posse commentatus act scope well, I mean there's some I've tried to compare 12406 with the insurrection act language because it seems that the insurrection act is Conceited to provide an exception to the posse commentatus act and interestingly that the insurrection act is

[01:00:59] Speaker 00:
seems to make it much more clear that it authorizes both a calling forth into federal service and then use of the armed forces.

[01:01:07] Speaker 00:
It literally says, and use such of the armed forces.

[01:01:13] Speaker 00:
And that turn of phrase does not seem to me to exist in 12406.

[01:01:19] Speaker 00:
And then there is some tension with, I think, the party's views about what constitutes execution of the law.

[01:01:26] Speaker 00:
the federal defendants are arguing merely providing a protective detail is not execution.

[01:01:32] Speaker 00:
So I think one way that could be reconciled with the difference in language between 12406 and the Insurrection Act is to say that 12406 might authorize the calling forth but to not execute the laws but merely to enable civilian law enforcement to execute the laws and the troops would not be directly engaged.

[01:01:55] Speaker 00:
essentially in the way prohibited by the PCA.

[01:01:58] Speaker 00:
But that would, in my mind, is one way to reconcile textual differences between these different statutes and what I understand to be that historically how we have interpreted in our precedent what the scope of the PCA is.

[01:02:15] Speaker 00:
Do you have any objections to that view?

[01:02:18] Speaker 02:
We don't have any objections to that view.

[01:02:20] Speaker 02:
And it's certainly a reasonable way to reconcile

[01:02:25] Speaker 02:
statutory requirements here.

[01:02:27] Speaker 02:
And it would go part of the way towards explaining a little bit of the historical oddity of Section 12406 and its redundancy to some degree with aspects of the Insurrection Act.

[01:02:39] Speaker 02:
There is this strange question lurking about what Section 12406 is doing, and partly that question is lurking because it's been so seldom used.

[01:02:49] Speaker 02:
It's only been used once in the history of our country since it was first enacted 122 years ago.

[01:02:56] Speaker 02:
And there's generally been an expectation that if the president has extraordinary, if the circumstances are extraordinary enough to justify calling out the military for domestic deployment, that that would rise or fall under the Insurrection Act.

[01:03:10] Speaker 02:
So I think that is a plausible way to reconcile the competing statutes here.

[01:03:15] Speaker 02:
The other thing I'd say, Your Honor,

[01:03:16] Speaker 02:
we think is dispositive on this issue is that if you look back to the history of the Insurrection Act and the Posse Comitatus Act, from literally the year that the Posse Comitatus Act was passed, the Defense Department puts out a guide, essentially, to all of the statutes that it considers to qualify as exceptions under the act.

[01:03:40] Speaker 02:
Maintain that list over that 150 years or so since the PCA was enacted.

[01:03:46] Speaker 02:
It's always included what is now known as the Insurrection Act.

[01:03:50] Speaker 02:
It has never included what is now Section 12406.

[01:03:54] Speaker 02:
And so that's relevant to statutory interpretation, because even if, from a modern contextualist standpoint, we wouldn't see as a matter of first principles the Insurrection Act being the type of express exception that the Posse Comitatus Act demands, there's that longstanding history of executive branch interpretation in Congress

[01:04:15] Speaker 02:
has operated against the backdrop of that and repeatedly recodified both the PCA and the Insurrection Act.

[01:04:22] Speaker 02:
So we think that that historical understanding of treating it as an exception to the PCA has essentially been ratified or acquiesced in by Congress.

[01:04:30] Speaker 02:
You don't have anything like that in the case of Section 12406.

[01:04:34] Speaker 02:
It's very telling again and again and again when the Defense Department puts out the list of statutes it considers

[01:04:40] Speaker 02:
to be an exception to the PCA, the modern equivalent, the historical equivalent of Section 12406 is never there, including there's a version of this list that was published just weeks or just a few months after the enactment of Section 12406 in January 1903.

[01:04:59] Speaker 02:
Surely if executive branch officials and Congress had intended it to operate as an exception to the PCA, we would have seen it on that list right after the 1903 Militia Act was passed.

[01:05:12] Speaker 00:
Thank you.

[01:05:14] Speaker 03:
Any further questions?

[01:05:16] Speaker 01:
No.

[01:05:16] Speaker 01:
Thank you, Judge Miller.

[01:05:17] Speaker 01:
Thank you, Your Honors.

[01:05:19] Speaker 01:
Thank you.

[01:05:23] Speaker 04:
Rebuttal?

[01:05:26] Speaker 04:
Unless the Court has specific questions, I just have a few points to make on the 12406 calling up question.

[01:05:34] Speaker 04:
The first is to respond on the question of rebellion.

[01:05:36] Speaker 04:
Of course, the Court does not need to reach

[01:05:39] Speaker 04:
the issue of rebellion if it agrees that the calling up was authorized here under subsection three of the statute on law execution.

[01:05:48] Speaker 04:
But if the court does reach that question, I would commend to the court Judge Nelson's opinion in the Oregon case from earlier this week that I think marches through in detail the historical understanding of

[01:06:03] Speaker 04:
rebellion that refutes the principal basis on which the district court here concluded that subsection two could not be met because the district court said for it to be rebellion it has to be aimed at overthrowing the government as a whole.

[01:06:17] Speaker 04:
That's inconsistent both with the ordinary understanding of the word rebellion and it's inconsistent with key historical precedents in which presidents called up the guard

[01:06:28] Speaker 04:
in order to suppress rebellions like the Whiskey Rebellion, which was not aimed at overthrowing the entire government.

[01:06:33] Speaker 04:
It was aimed at opposing a particular excise tax, a particular law.

[01:06:38] Speaker 04:
And there's certainly nothing in our position, in our understanding of the term rebellion, that would allow the President to conclude that there was a rebellion based on First Amendment protected activity.

[01:06:48] Speaker 04:
We're talking about violence here through force and arms, opposing the laws and operations of the government.

[01:06:56] Speaker 04:
Second point I wanted to make has to do with the exhaustion requirement that Mr. Harbert spoke about.

[01:07:03] Speaker 04:
It really is quite an extraordinary suggestion that in this statute that is dealing with emergencies, the Supreme Court in Martin said, sorts of emergencies that require prompt and unhesitating obedience.

[01:07:16] Speaker 04:
The idea that the President would have to come to court and explain in detail

[01:07:19] Speaker 04:
why he concluded that these forces were necessary to call up as opposed to using these other forces.

[01:07:25] Speaker 04:
That, of course, is something that is within the President's discretion to do.

[01:07:28] Speaker 04:
That's what the President did, for example, in Portland, where there was significant unrest also in June, and the President first tried to meet that with the regular forces and only ended up calling up the Guard when that

[01:07:41] Speaker 04:
became unsafe and unsustainable.

[01:07:43] Speaker 04:
But it's also within the president's discretion to do what he did in LA and to look at that situation and say this is widespread violence where there's a serious risk of this escalating and getting out of hand rapidly and immediately calling in the guard based on a determination that the regular forces can't handle this situation.

[01:08:02] Speaker 04:
And then the final point I wanted to make on the question of the time period.

[01:08:07] Speaker 04:
As I mentioned at the outset, Judge Miller, when this statute was originally enacted in 1903, it authorized the president to, it shall be lawful for the president to call forth the guard for a period not exceeding nine months.

[01:08:24] Speaker 04:
That was section four of the statute.

[01:08:26] Speaker 04:
Section five then said,

[01:08:28] Speaker 04:
that the President may specify and has called the period for which such service is required not exceeding nine months.

[01:08:34] Speaker 04:
Congress has removed that language from the statute, I think, quite clearly, vesting that determination in the President's discretion.

[01:08:41] Speaker 04:
Of course, we think the calling up is in the President's discretion, and the final point that I would make on that is I understand that it makes courts uncomfortable, the idea that something would be completely

[01:08:52] Speaker 04:
vested in executive branch discretion with no judicial review.

[01:08:55] Speaker 04:
That was not a point that was lost on the Supreme Court in either Martin or Luther.

[01:09:00] Speaker 04:
Both cases expressly address that point.

[01:09:04] Speaker 04:
And in Martin, the court said, the frequency of elections and the watchfulness of the representatives of the nation carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.

[01:09:17] Speaker 04:
And then in Luther, the court said, if the president in exercising this power shall fall into error,

[01:09:22] Speaker 04:
or invade the rights of the people of the state, it would be in the power of Congress to apply the proper remedy, but the courts must administer the law as they find it.

[01:09:31] Speaker 03:
We would ask the court to vacate the injunction.

[01:09:37] Speaker 03:
The basis for the 12406 injunction was an ultra-virus theory.

[01:09:44] Speaker 03:
And you have devoted much of your argument against the Posse Comitatus Act injunction to the idea that an ultra-virus injunction is unavailable, but you haven't made a similar argument with respect to 12406.

[01:10:01] Speaker 04:
We have invoked the ultra-virus standard on the 12406 issue.

[01:10:06] Speaker 04:
Of course, we think that's not reviewable at all, but if you get past that, then it is the ultra-virus standard, and that's because Congress has never enacted a statute, either specifically with respect to 12406 or generally, subjecting presidential determinations to judicial review.

[01:10:22] Speaker 04:
The president is not an agency

[01:10:24] Speaker 04:
under the APA.

[01:10:25] Speaker 04:
And so the only possible cause of action is the ultra-virus cause of action.

[01:10:29] Speaker 04:
The Supreme Court, to my knowledge, has actually never held that that cause of action can be used to bring a claim that the president exceeded his authority under a statute.

[01:10:41] Speaker 04:
Court reserved that question in Dalton, but even setting that aside, the court's recent decision in NRC makes quite clear, as the court has noted, that that is a Hail Mary pass and garden variety errors of fact or law do not suffice under that standard.

[01:10:57] Speaker 04:
It has to be blatantly lawless action.

[01:11:00] Speaker 04:
where the agency is acting contrary to a specific prohibition in the statute or entirely in excess of delegated powers.

[01:11:09] Speaker 04:
Of course, there is no specific prohibition in Section 12406.

[01:11:12] Speaker 04:
It's an authorization.

[01:11:14] Speaker 00:
The Constitution gives Congress the calling forth power, right?

[01:11:17] Speaker 00:
So the president's only ability to call forth is that which was delegated to the president by Congress, by statute, right?

[01:11:27] Speaker 00:
The president has absolutely no constitutional authority to call forth the militia except to the extent granted by Congress.

[01:11:36] Speaker 00:
Is that correct?

[01:11:37] Speaker 04:
I agree with that.

[01:11:39] Speaker 04:
But that's what makes this a claim that the president is exceeding his authority under the statute.

[01:11:45] Speaker 04:
That's the claim that they're making that he's acting ultra-vira's because he's called forth the guard in circumstances that don't meet any of those enumerated subsections.

[01:11:54] Speaker 04:
And even if there were judicial review of that, it would, it could only be this ultra-vira standard where you're asking,

[01:12:00] Speaker 04:
Is there a specific prohibition?

[01:12:01] Speaker 04:
No, there's not a specific prohibition that he's violated.

[01:12:04] Speaker 04:
Has he acted entirely in excess of his delegated powers?

[01:12:08] Speaker 04:
I think at a minimum, as long as there is the sort of colorable basis, in fact, in law.

[01:12:13] Speaker 00:
That's confusing the merits with the existence of a cause of action.

[01:12:17] Speaker 04:
I think the two sort of merge when we're talking about the ultra-virus standard because the court has said that cause of action is available only for those sorts of violations and not for garden variety errors of factor law.

[01:12:33] Speaker 01:
So, counsel, Judge Miller, can I ask a few questions about the PCA?

[01:12:39] Speaker 01:
So, your friend indicates that vis-a-vis the PCA issue, he believes that NRC is inapplicable.

[01:12:49] Speaker 01:
I know you address NRC in your PCA filings, but could you address that argument here?

[01:12:56] Speaker 04:
Sure.

[01:12:58] Speaker 04:
Again, we don't think there's any available cause of action for a plaintiff to challenge an alleged violation of the Posse Comitatus Act because it's a criminal statute and the ultra-virus cause of action has never been extended and used for an alleged violation.

[01:13:15] Speaker 04:
of a criminal statute, and I think as the Supreme Court and NRC was quite clear, they had been looking to put limits on that cause of action and not expand it into new territory.

[01:13:25] Speaker 04:
And so applying it to an alleged violation of a criminal statute would be something new that doesn't have sort of a long-standing analog and equitable practice.

[01:13:35] Speaker 04:
But even setting that aside, if there is some cause of action here, it could only conceivably be the ultra-various cause of action.

[01:13:42] Speaker 04:
That's certainly the only one on which

[01:13:44] Speaker 04:
Judge Breyer ruled that's the basis for the injunction that he entered.

[01:13:49] Speaker 04:
And so they would have to meet that very stringent standard in order to obtain relief.

[01:13:54] Speaker 04:
And they can't possibly meet it here for all of the reasons that we outlined in our motion for a stay.

[01:13:59] Speaker 01:
All right.

[01:14:00] Speaker 01:
My second question on the PCA is your friend has indicated that the

[01:14:11] Speaker 01:
the exception or that the ability of the president to call forth when he is unable to, with the regular forces, execute the laws, that that doesn't count under the PCA as a circumstance expressly authorized by an act of Congress for a variety of reasons that he outlined in argument and in the briefs.

[01:14:37] Speaker 01:
And I know you again address this in your pleadings, but could you address it here?

[01:14:44] Speaker 01:
Why, if we got to consider this in the ultra-vira's context, whether your position on whether that does constitute the type of exception described in 1385 as something expressly authorized by an act of Congress?

[01:15:00] Speaker 04:
Absolutely, it qualifies as something expressly authorized by an act of Congress, and I frankly have a hard time understanding how it could not be.

[01:15:09] Speaker 04:
Section 12406 expressly authorizes the National Guard, when it has been federalized, to execute the laws that the President determined that the regular forces

[01:15:20] Speaker 04:
were unable to execute, so there's an express authorization to execute the laws.

[01:15:26] Speaker 04:
I fail to see how that could fall outside the language of the Posse Comitatus Act that says, except in cases and under circumstances expressly authorized by an act of Congress.

[01:15:38] Speaker 01:
Well, one of the arguments your friend makes in his PCA pleadings, which you may have addressed, but I didn't see it, is they cite 10 USC 12405 and talk about how even members of the Guard called into service are subject to all laws and regulations, et cetera,

[01:16:06] Speaker 01:
which would include the PCA.

[01:16:09] Speaker 01:
So what's your response to that?

[01:16:12] Speaker 01:
And again, I didn't see it in your pleading, but I might have missed it.

[01:16:16] Speaker 04:
I mean, I guess that strikes me as a bit of a chicken and egg problem, but I don't think that language would override

[01:16:24] Speaker 04:
the express authorization in section 12406 to execute the laws.

[01:16:29] Speaker 04:
I mean, subsection three of section 12406 would effectively be nullified if you said the National Guard couldn't execute the laws that the regular forces were unable to execute, and therefore the President called up the Guard to execute them if they couldn't do that without violating the Posse Comitatus Act.

[01:16:47] Speaker 01:
Judge Miller, thank you for letting me ask those questions.

[01:16:52] Speaker 03:
All right, thank you very much.

[01:16:54] Speaker 03:
We thank both counsel for their helpful arguments and the case is submitted and we are adjourned.

[01:17:20] Speaker 05:
This court for this session stands adjourned.