Left: FILE – California Governor Gavin Newsom unveils his revised state budget at a press briefing in Sacramento, California, on Wednesday, May 14, 2025 (Photo/Rich Pedroncelli, File). Right: President Donald Trump addresses attendees during a ceremony to enact a bill stopping California’s regulation banning the sale of new gas-powered vehicles by 2035, held in the East Room of the White House, Thursday, June 12, 2025, in Washington (AP Photo/Alex Brandon).
On Friday, the 9th U.S. Circuit Court of Appeals disclosed that one of its judges initiated a poll among colleagues to consider if the full court — en banc — should reassess a decision that favored President Donald Trump regarding the federalization of California’s National Guard.
This polling request necessitates that, at a minimum, attorneys for the Trump administration’s DOJ and representatives for Governor Gavin Newsom, D-Calif., must submit briefs either opposing or supporting this move within a seven-day timeframe.
The court’s order said as follows:
ORDER FILED. Mark J. BENNETT, Eric D. MILLER, Jennifer SUNG A judge of this court has called for a vote to determine whether this case should be reheard en banc. The parties are directed to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc. The briefs shall not exceed 15 pages unless they comply with the alternative length limitation of 4,200 words, and they shall be filed within seven (7) days of the date of this order.
It is not clear which judge of the court requested the poll, but a “judge may sua sponte call for a vote on rehearing or rehearing en banc.”
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What case would be heard again? The one that ended in June with a three-judge panel unanimously staying U.S. District Judge Charles Breyer’s temporary restraining order, an order that had blocked the president’s action. The lower court’s order had said Trump exceeded his statutory authority and violated the 10th Amendment by taking over the state’s National Guard and deploying it to Los Angeles.
In the per curiam appellate decision that followed, however, U.S. Circuit Judges Mark Bennett and Eric Miller, both Trump appointees, and Jennifer Sung, a Joe Biden appointee, agreed that the Trump administration made a “strong showing that they are likely to succeed on the merits of their appeal.”
The panel wrote that it was “likely” at that stage that Trump “lawfully” deployed the National Guard to “protect federal personnel performing federal functions and to protect federal property” amid civil unrest or, as the administration put it, “rebellion” over ICE raids. The panel also said it “must be highly deferential” to Trump, even though his invocation of the federal statute that allows the president to call up the National Guard isn’t “completely insulated from judicial review.”
“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.”
Now, it seems, at least one 9th Circuit judge believes there are more questions worth asking.
