Brian D. Ginsberg, leader of Harris Beach Murtha’s Appellate Practice Group, provided commentary for an article in The Recorder regarding a U.S. District Judge’s recent decision. The ruling found that President Trump’s deployment of National Guard troops to Los Angeles in June, intended to suppress protests against his immigration policies, was in violation of the U.S. Constitution.

Brian weighed in on whether the ruling will hold up on appeal. “The district court appeared to repeatedly criticize what it characterized as ‘the Ninth Circuit’s test’ for when the President may properly rely on § 12406 to call the National Guard into federal service,” Brian said.

“But while the Ninth Circuit did not purport to definitively resolve this case in its earlier opinion, its pronouncements of law are binding upon the district court and must be followed unless and until they are modified or overruled,” Brian continued. “The district court’s repeated criticism of the Ninth Circuit’s legal interpretation could give the impression that the district court opted not to adhere to it — an impression that might raise judicial eyebrows if and when the case returns to the Ninth Circuit for a subsequent appeal.”

Brian added that the outcome of an appeal would largely hinge on “the extent to which the district court’s decision rested on issues of law, like the interpretation of § 12406, versus the extent to which it rested on issues of contested fact resolved by the district court during the trial.”

“Appellate courts are loathe to disturb findings of fact made by trial courts, so expect the government to portray this case as turning on issues of statutory interpretation and expect the adversaries to portray this case as turning largely on the district court’s extensive factual determinations,” Brian said.

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