Trump could upend the very structure of American government -- Austin Sarat

[erronis]

https://contrarian.substack.com/p/trump-could-upend-the-very-structure

If he gets away with using the National Guard in Los Angeles, the very basis of our constitutional order would be damaged

A discussion of the 10th Amendment and how it applies to our current situation.

Writing in 2011, former Supreme Court Justice Anthony Kennedy said, “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.“ This simple insight offers a key vantage point for understanding the threat that President Donald Trump’s unwarranted deployment of the California National Guard and the U.S. Marines in Los Angeles poses not just to the rights of protesters but also to the very structure of American government.

Last week, Federal District Judge Charles R. Breyer highlighted that threat in an important decision returning control of the guard to California Gov. Gavin Newsom. On Tuesday, the Ninth Circuit Court of Appeals will hear from the Trump administration seeking to overturn Breyer’s decision.

The Ninth Circuit should uphold what Breyer did and resist the president’s assault on the Constitution. Whatever happens on that appeal, the importance of Breyer’s discussion of America’s federal system will be undiminished.

Along the way, Breyer determined that the president’s actions “were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”

The Tenth Amendment? It is one of the least discussed but most important provisions of the Bill of Rights, a key to James Madison’s vision of limited government.

Recall the language of that amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

. . .

If Trump can get away with circumventing the Tenth Amendment, the president will move closer to having what Justice Kennedy called “complete jurisdiction over all the concerns of public life.” Kennedy is right to remind us that “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.