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The Justice Department on Wednesday doubled down on its assertion that President Donald Trump has the authority to call up U.S. National Guard troops in California, describing Democratic Gov. Gavin Newsom’s emergency lawsuit to block his action as a “crass political stunt” that risks “endangering American lives.”
At issue in the case is whether Trump, as commander in chief, has the authority to federalize the National Guard against the express wishes or consent of a state governor. Both sides are slated to appear in court Friday while a judge weighs California’s request for injunctive relief.
In the new court filing, lawyers for the administration said Trump, as president, has “no obligation” to consult with, or even to notify, Newsom before federalizing the National Guard.
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“The extraordinary relief plaintiffs request would judicially countermand the Commander in Chief’s military directives – and would do so in the posture of a temporary restraining order, no less,” lawyers for the Trump administration said in the filing.
“That would be unprecedented. It would be constitutionally anathema,” they added. “And it would be dangerous.”
That argument is unlikely to sit well with Newsom.
And it comes one day after California Attorney General Rob Bonta on Tuesday sued the Trump administration over what the state described as the president’s unlawful action in federalizing the National Guard, which they noted was carried out without Newsom’s consent.
Bonta argued in the lawsuit that Trump’s actions were both inappropriate and illegal, since he did not first seek Newsom’s permission to federalize the troops. National Guard units fall under the dual control of state and federal governments, and any action to mobilize the units typically goes through the respective state governor first.
The judge overseeing the case declined the state’s request for a temporary restraining order blocking Trump’s actions but ordered both parties to court Friday to consider the request for broader injunctive relief.
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At issue is 10 U.S.C. § 12406, or the law that Trump invoked in his memo late last week to call up the National Guard.
The law allows presidents to deploy the National Guard and other troops at the federal level in the event of “rebellion or danger of a rebellion” against the U.S. government.
In that case, the law says the president “may call into federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.”
But lawyers for Newsom told the court that Trump lacked the power to federalize the troops under Section 12406, since the immigration protests, in their view, did not amount to a rebellion.
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“At no point in the past three days has there been a rebellion or an insurrection. Nor have these protests risen to the level of protests or riots that Los Angeles and other major cities have seen at points in the past, including in recent years,” they told the court.
A group of 26 Republican state attorneys general from filed an amicus brief siding with Trump one day earlier, arguing that his decision to federalize the National Guard to address ICE riots and protests that broke out in parts of the state was the “right response.”
“In California, we’re seeing the results of leadership that excuses lawlessness and undermines law enforcement,” the attorneys general wrote in the statement, first provided to Fox News Digital. “When local and state officials won’t act, the federal government must.”
Fox News Digital’s Ashley Oliver contributed to this report.
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