Holding Our Collective Breath: What We Learned from Today's 9th Circuit Hearing

June 17, 2025 - The arguments are in. The stakes couldn't be higher.

The constitutional reckoning we've been waiting for arrived today in a San Francisco courthouse, delivered not with dramatic flourishes but through probing questions from three federal judges that cut to the heart of American democracy itself.

"Unreviewable" Power

The Trump administration came to the 9th Circuit with a breathtaking argument: that when a president federalizes state National Guard troops, that decision is beyond judicial review. Period.

"Department of Justice lawyers representing the Trump administration returned to court today to repeat their maximalist argument that the president has the authority to commandeer state National Guards troops and that judges have no authority to second guess him."

DOJ attorney Brett Shumate didn't hedge. When pressed by the panel about whether courts could review Trump's decision at all, Shumate argued that "Trump alone has the authority to determine whether the National Guard should be called in, and his failure to include Newsom in the decision was at most a 'technical violation' of the statute."

The implications are staggering. If accepted, this logic would mean a president could federalize any state's National Guard, deploy them against protests, and claim the courts have no power to intervene. "The governor is merely a conduit, not a roadblock or a core executive, when the president decides it's necessary to call out the Guard," Shumate said.

The Questions That Matter

But it was the questions from the bench that revealed where this case might be heading. Trump-appointed Judge Mark Bennett asked the government's lawyer what would happen if a president "gives no reasons for doing it, provides no support for doing it" when calling in the National Guard over street protests.

Judge Eric Miller, another Trump appointee, pressed with an even more fundamental question: "What does it mean for the president to be unable with regular forces to execute the laws?"

These weren't softball questions. They were constitutional stress tests, probing the outer limits of executive power in ways that suggested even Trump-appointed judges have concerns about unlimited presidential authority.

California's Defense

California's legal team called Trump's arguments "terrifying," and their attorney Samuel Harbourt made the case for judicial oversight with measured urgency.

Harbourt argued that while Newsom doesn't oppose giving the president "some sort of deference" for implementing federal law, "there's really nothing to defer to because the president has not, and the defendants have made no attempt whatsoever to provide an argument or evidence that they even contemplated more modest measures to the extreme response."

The state's argument cut deeper than procedural violations. Harbourt concluded by asking the panel to get the National Guard out of Los Angeles so troops could return to "their regular job of responding to emergencies like wildfires, in a situation that is causing harm to our nation's broader democratic tradition of the separation of the military from civilian affairs."

What We're Really Fighting About

Strip away the legal citations and what emerged today was a clash between two visions of American government.

On one side: A presidency with "unreviewable discretion" to deploy military force domestically when it determines there's a "danger of rebellion" - a standard so vague it could encompass any protest that disrupts federal operations.

On the other: A system where courts can examine presidential claims, where federalism means something, and where military deployment against civilians requires more justification than executive assertion.

The three-judge panel "pressed lawyers for the administration and the state of California on whether courts could review Trump's decision at all," suggesting they understand the fundamental question at stake isn't just about this deployment, but about the nature of constitutional government itself.

The Judges Who Will Decide

The composition of the panel couldn't be more symbolic of our current moment: two Trump appointees (Judges Mark Bennett and Eric Miller) and one Biden appointee (Judge Jennifer Sung) holding the constitutional balance in their hands.

The panel "did not issue a ruling on Tuesday" but "Bennett suggested that the court could act before a hearing that Breyer has scheduled in the case for Friday." Translation: We could have an answer within days.

What Hangs in the Balance

If the 9th Circuit accepts the administration's "unreviewable discretion" argument, it would effectively gut judicial oversight of domestic military deployments. Future presidents could federalize state troops at will, claiming any civil unrest constitutes "rebellion."

If they uphold Judge Breyer's ruling, it would establish that even in matters of national security, presidential power has limits that courts can enforce.

The Waiting Game

The arguments played out as Los Angeles Mayor Karen Bass ended a curfew that she imposed after President Trump sent the National Guard and U.S. Marines to the city - a reminder that while lawyers debate constitutional theory, troops remain on the streets.

The constitutional system Judge Breyer compared to "the difference between a constitutional government and King George" now awaits the judgment of three appellate judges. Their decision will echo far beyond Los Angeles, far beyond this administration, into the fundamental question of whether we remain a nation of laws or become something else entirely.

We hold our collective breath, knowing that sometimes the fate of republics turns on the questions judges ask and the answers they accept.

The bear flag is still flying. Tuesday's arguments suggest it might stay that way - or they might herald something much darker than anyone wants to imagine.