Trump Notches Another D.C. Circuit Win With National Guard Ruling

President Trump and his administration chalked up another court win on Wednesday, as the D.C. Circuit Court of Appeals issued an order granting the administration's request to stay a lower court injunction that enjoined the Trump administration from deploying or requesting the deployment of any members of the National Guard in the District of Columbia.

President Trump issued a memorandum in August directing the Secretary of Defense to mobilize the District of Columbia’s National Guard to address violent crime and to ensure public safety within the District, and to work with state governors to deploy additional National Guard units from the states to the nation’s capital.

In September, D.C. filed suit against President Trump, the Department of Defense, Secretary of Defense Pete Hegseth, the U.S. Army, Secretary of the Army Dan Driscoll, the Department of Justice, Attorney General Pam Bondi, the U.S. Marshals Service, and the Director of the U.S. Marshals Service, Gadyaces S. Serralta, alleging that the deployment of both the D.C. Guard and State Guards violates the Administrative Procedure Act. D.C. subsequently moved for a preliminary injunction in the case.

D.C. District Court Judge Jia Cobb issued a preliminary injunction in November, but also stayed her ruling for 21 days to afford the administration time to lodge an appeal — which it promptly did.

The Circuit Court of Appeals initially granted an administrative stay (on December 4), and with Wednesday's order, dissolves that stay and instead has issued a formal stay pending appeal. Of note, the decision itself is per curiam, but accompanied by a statement authored by Judge Patricia Millett (an Obama appointee) in which Judges Neomi Rao and Gregory Katsas (both Trump appointees) concurred.

Millett's statement runs 27 pages and is fairly straightforward. It includes a very helpful explanation of not only the chronology of the case but the establishment of the National Guard and the statutory bases for its deployment, as well as the establishment of the District of Columbia and its governance — an interesting read for anyone wanting to better acquaint themselves with the historical context.

But Millett gets to the bottom line thusly:

Because the District of Columbia is a federal district created by Congress, rather than a constitutionally sovereign entity like the fifty States, the Defendants appear on this early record likely to prevail on the merits of their argument that the President possesses a unique power within the District—the seat of the federal government—to mobilize the Guard under 32 U.S.C. § 502(f). It also appears likely that the D.C. Code independently authorizes the deployment of the D.C. Guard.
In sum, the Defendants are likely to show that Section 502(f)(2)(A) authorized the President and the Secretary of Defense to request that both the D.C. Guard and the State Guards undertake a federal mission in the District.
In sum, considering the many provisions of the D.C. Code that identify the President’s status as Commander in Chief of the D.C. Guard alongside those that enable the D.C. Guard to assist civil authorities in preserving the operations of the seat of federal government and protecting the Nation’s Capital, the Defendants are likely correct that the President acted consistently with District law in directing the deployment of the D.C. Guard.
In short, because of the District’s unique constitutional status as a federal territory, the Nation’s Capital, and the seat of federal government, as well as the President’s consent to receive these forces, the Defendants have demonstrated that the district court likely erred in concluding that the deployment of out-of-state guard members to the District raised a serious federalism question under the Constitution.
Absent a stay pending appeal, the district court’s order also risks the back-and-forth withdrawal and redeployment of guard members pending the completion of litigation.

New: 7th Circuit Grants Trump Admin's Request for Stay in Illinois National Guard Case - in Part

Rao, in a separate statement, expresses doubt that D.C. even has proper standing to bring the litigation to begin with:

I write separately to highlight an additional reason the President and other federal officials are likely to succeed onthe merits of their appeal: the District of Columbia may lack Article III standing to challenge the deployment of National Guard troops in the District.
We have never recognized that the District possesses an independent sovereignty that can give rise to an Article III injury from actions of the federal government. Such an injury is likely untenable as a matter of first principles and finds no support in our precedent or historical practice.
To begin with, a theory of sovereign injury is inconsistent with the District’s legal status.
While Congress has provided the District with a certain degree of self-governance, we have never recognized that the District has standing to sue the President and federal officers for sovereignty-based injuries.
In finding standing, the district court relied exclusively on cases involving state standing to sue federal entities, but no one suggests that the District has the same sovereignty as a State.
In their motion for a stay, the Defendants did not object to the District’s standing. Article III courts, of course, have an independent obligation to verify their jurisdiction. Permitting the District to sue the President and other federal officials based on a sovereign injury is unprecedented and likely at odds with the unique legal status of the District. In subsequent proceedings, this important jurisdictional question should be given further consideration.

(That last paragraph/bullet point is a wink-wink, nudge-nudge if ever I saw one.)

To be clear, this isn't the end of the line for the case. D.C. could always seek rehearing en banc. And, as Millett rightly notes in her statement, "This decision does not bind the merits panel, which will engage in a fuller assessment of these issues." (Remember, this ruling only involves placing the district court injunction on hold while the appeal is sorted out on the merits.)

Moreover, one shouldn't read too much into this decision as it relates to the other pending National Guard cases, which all involve federalization and deployment in states, not a federal district like D.C.

But a win's a win, and this counts as one for the administration.

Editor's Note: Unelected federal judges are hijacking President Trump's agenda and insulting the will of the people

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