The Dispute Between Trump and Newsom Over National Guard Might Reach the Supreme Court

The 9th U.S. Circuit Court of Appeals has ruled to temporarily permit the Trump administration’s use of the California National Guard in certain areas of Los Angeles, amidst protests regarding immigration law enforcement.

This late-night decision marks a win for the Trump administration in the legal battle initiated by Democratic Governor Gavin Newsom. The administration had promptly requested a review of a Thursday verdict by Senior U.S. District Judge Charles Breyer. Judge Breyer had ruled that President Donald Trump’s efforts to take charge of the National Guard in California were “illegal” and breached the 10th Amendment of the Constitution.

The administrative stay from the 9th Circuit was followed by an expedited schedule: the appellate court has ordered California to respond by 9 a.m. on Sunday. California had opposed the stay request by calling it “unnecessary and unwarranted in light of” Breyer’s “extensive reasoning[.]”

Breyer is a Bill Clinton appointee who also happens to be the brother of retired Supreme Court Justice Stephen Breyer.

In his Thursday order, Breyer said Trump’s federalization of the California National Guard in response to “unruly and even violent” actors among those protesting ICE raids in Los Angeles didn’t pass legal muster because the Trump administration did not persuade him that a “rebellion” — or a “danger of an organized, violent, armed uprising with the goal of overthrowing the lawful government of the United States” — was afoot.

“At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” Breyer wrote. “He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”

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“While Defendants have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole. The definition of rebellion is unmet,” Breyer added later.

But even as Breyer — who reportedly referenced King George III during the hearing — said that Trump should return control of the National Guard to Newsom “forthwith,” he stayed his temporary restraining order, giving the federal government enough time to swiftly appeal the ruling.

The Trump administration did just that, calling Breyer’s action “an extraordinary intrusion on the President’s constitutional authority as Commander in Chief[.]”