FILE – President Donald Trump and First Lady Melania Trump listen to California Governor Gavin Newsom after landing at Los Angeles International Airport on Air Force One, Los Angeles, Jan. 24, 2025. (AP Photo/Mark Schiefelbein, File).
The 9th U.S. Circuit Court of Appeals on Thursday dismissed the DOJ’s stance that a president’s ability to call up the militia should not be scrutinized by the courts. However, they did approve an emergency stay for the Trump administration pending appeal. The court determined that it “was likely” President Donald Trump “legally” deployed California’s National Guard to “protect federal personnel performing federal duties and to safeguard federal property” during civil unrest and protests against ICE operations.
In the per curiam decision, the panel of U.S. Circuit Judges, comprising Mark Bennett and Eric Miller, appointed by Trump, and Jennifer Sung, appointed by Joe Biden, ruled against Governor Gavin Newsom, a Democrat. They disagreed with U.S. District Judge Charles Breyer’s judgment, which suggested the state would likely win in claims that the president overstepped his statutory powers and contravened the 10th Amendment.
Writing that the Trump administration made a “strong showing that they are likely to succeed on the merits of their appeal,” the 9th Circuit stayed Breyer’s temporary restraining order on an emergency basis.
“Notably, Plaintiffs conceded that National Guard members, if validly federalized, may be deployed to protect federal personnel and property,” the court said. “The district court determined that Plaintiffs presented no evidence at the TRO hearing that National Guard members were engaged in any other activities, and Plaintiffs do not contest that determination.”
The panel did not, however, embrace the Trump administration’s argument that judicial review would not be available if a president invoked 10 U.S. Code § 12406 — the federal statute that allows the president to call up the National Guard — and federalized the National Guard from all 50 states and Washington, D.C., simultaneously. Still, the appellate court said it “must be highly deferential” in this area.
“We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review,” the order said. “Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential.”
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“Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States,'” the court continued.
Later on, the panel made its position on judicial review even clearer.
“The source of the President’s power to federalize the National Guard is statutory, not constitutional. Consequently, the political question doctrine does not bar judicial review,” the order stated, rejecting the notion that a president could “federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.”
While the state of California had argued that Trump did not issue his order “through” Newsom, making the order procedurally invalid under the statute, the 9th Circuit found instead that Secretary of Defense Pete Hegseth’s “transmittal of the order to the Adjutant General of the California National Guard […] likely satisfied the statute’s procedural requirement[.]”
And if there was no statutory violation in this case, there was no 10th Amendment violation, the court added.
During Tuesday’s hearing, California attempted to make the case that Trump’s order was an affront to state sovereignty, democratic traditions, and the right to protest under the First Amendment. What’s more, said the state, there were identifiable harms — such as a risk of escalation of violence in the streets or a risk that wildfire prevention efforts would be hindered by Trump’s commandeering of the National Guard.
The 9th Circuit said those concerns are “too speculative” at this time.
“We do not know whether future protests will grow due to the deployment of the National Guard. And we do not know what emergencies may occur in California while the National Guard is deployed,” the court concluded. “Accordingly, at this time and on these facts, the remaining stay factors weigh in favor of Defendants.”
In response to the ruling, Newsom said the 9th Circuit “rightly rejected Trump’s claim that he can do whatever he wants with the National Guard and not have to explain himself to a court.”
“The President is not a king and is not above the law. We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens,” the governor said.
A hearing at the district court is scheduled to take place at 10 a.m. West Coast time.
