Trump DOJ says National Guard deployment in LA is 'unreviewable' in appeals court hearing

SAN FRANCISCO (KGO) — During a courtroom session on Tuesday, federal judges seemed to lean towards agreeing with the Trump administration’s stance regarding the deployment of California National Guard troops by President Trump without prior notification to Governor Gavin Newsom.

In a crucial online hearing before the 9th U.S. Circuit Court of Appeals, the Department of Justice contended that President Donald Trump lawfully utilized his executive authority to dispatch troops to support the protection of federal officers and infrastructures during immigration enforcement protests in Los Angeles.

Just last Thursday, U.S. District Judge Charles Breyer, based in San Francisco, ruled temporarily in favor of California to reinstate Governor Newsom’s control over the National Guard. However, only hours afterward, appellate judges issued a temporary halt on Breyer’s decision, setting the stage for their Tuesday session.

PREVIOUS: Trump can keep National Guard in LA for now after appeals court blocks order

The lawsuit was filed last Monday after President Trump issued a Saturday memo to the Department of Defense ordering “at least” 2,000 National Guard members for 60 days minimum.

Brett Shumate, a U.S. attorney representing Trump, said Breyer’s order interferes with the commander-in-chief’s executive power.

“It upends the military chain of command. It gives state governors veto power over the president’s military orders,” he said. “Courts don’t just defer to the president’s judgment – they don’t review the president’s judgment.”

The panel of three judges – including two Trump appointees – pushed back on the DOJ’s assertion, asking the Trump administration hypothetical questions about how far this lack of judicial review could go.

“If a hypothetical future president made the decision to call up in response the militia of every state and the District of Columbia, so 51 militia, would it also be your view that that decision by this hypothetical future president would be entirely unreviewable?” Judge Mark Bennett, a 2018 Trump appointee, asked.

“Yes, because the statute says the president may call into federal service members and units of the guard of any state in such numbers that he considers necessary,” Shumate responded.

Sam Harbourt with the California Department of Justice argued Trump’s deployment was “extreme” and defies precedent.

“Every day that this order remains in effect, it is causing harm to our nation’s broader democratic tradition of separation of the military from civilian affairs,” he said.

MORE: CA Sen. Alex Padilla, Democrats write letter to Pres. Trump to remove military from Los Angeles

Additionally, California argued the president violated the law by not directly contacting Newsom about his deployment. The statute in question allows federal use of state National Guard troops under certain circumstances and that orders doing so shall be issued “through the governors” of such states. Judges appeared skeptical of this point.

“Where does the statute say that issuing it ‘through the governor’ requires either the governor’s consent or requires consultation?” Bennett asked Harbourt.

“We take it from the plain meaning of through the governor,” Harbourt responded. “We think at a minimum, that means that the governor needs to be informed of it and given the chance to issue it.”

Additionally, the state said Trump’s actions are harming California, since those National Guard members would otherwise be working on wildfire prevention efforts as the state heads into peak wildfire season – a point Newsom made in an earlier statement Tuesday.

MORE: CAL FIRE is hiring: Newsom ramping up recruitment as Nat’l Guard firefighting capacity drops

“President Trump’s illegal militarization of Los Angeles is sidelining crucial firefighting and prevention resources,” the governor said. “It’s time to end the chaos and get California’s National Guard back to this important work.”

The judges did not signal how soon they may issue a decision.

Constitutional law professor Rory Little of UC Law San Francisco said the panel’s questions during Tuesday’s hearings were telling.

“Honestly, I’m not sure the court is receptive to the California position. It sounded to me like this could be a reversal of the district court. This could be affirming of the Trump administration’s position, at least at this preliminary stage,” he said.

Little noted that all action in the courts so far has been preliminary. If the appellate court decides to permanently reverse Judge Breyer’s initial temporary restraining order, the National Guard would remain in Trump’s control for at least 60 days.

“If California wins today, that case will go up to the Supreme Court,” he said. “I think if California loses today, it’ll still go to the Supreme Court.”

Copyright © 2025 KGO-TV. All Rights Reserved.

You May Also Like

Delta Air Lines jet clips Air Canada plane on Los Angeles International Airport tarmac

Delta Air Lines Jet Clips Air Canada Plane on LAX Tarmac

A Delta Air Lines jet collided Tuesday with an Air Canada aircraft…
Young dad, 24, vanishes in Ohio after going to Steelers-Browns game

24-Year-Old Ohio Dad Vanishes After Steelers-Browns Game

A 24-year-old Maryland father disappeared after traveling to Ohio last week for…
Tropical Storm Isaias forms, expected to become a hurricane and hit the US Gulf Coast this week

Tropical Storm Isaias Forms, Forecast to Become Hurricane and Threaten US Gulf Coast This Week

MIAMI, Florida — Tropical Storm Isaias developed early Wednesday over the warm…
Man arrested at John Wayne Airport after stealing tug vehicle

Man Arrested After Stealing Tug Vehicle at John Wayne Airport

A man waiting to board a flight at John Wayne Airport allegedly…
Ex-CIA official found with gold bars admits to sprawling scheme, agrees to forfeit $194 million

Ex-CIA Officer Admits Vast Bribery Scheme, Forfeits $194M

Washington — David Rush, a former CIA official discovered in May with…
Cornell taps Sally Yates to lead internal probe into handling of gang- rape claims

Cornell Names Sally Yates to Probe Handling of Gang-Rape Claims

Cornell University has appointed former acting U.S. Attorney General Sally Yates to…
Man pleads guilty to 2023 killing of Lauren Heike on Phoenix hiking trail

Man Pleads Guilty to Killing Arizona Hiker Lauren Heike in 2023

Zion Teasley has admitted to killing Lauren Heike, the 29-year-old woman whose…
Cornell protesters swarm campus to support Jane Doe, call for university president's resignation

Cornell Protesters Rally for Jane Doe, Demand President Resign

Cornell University faculty are considering a vote of no confidence in the…
Woman allegedly stabs girl after SUV hits semi as soldiers step in to stop horrific roadside attack

Woman Accused of Stabbing Girl After SUV-Semi Crash; Soldiers Step In

A woman allegedly stabbed a young girl after crashing her SUV into…
Woman allegedly stabs girl after SUV hits semi as soldiers step in to stop horrific roadside attack

Soldiers Stop Woman’s Alleged Stabbing of Girl After SUV-Semi Crash

A woman allegedly stabbed a young girl after crashing her SUV into…
Four Dems in Close House Races Backpedal Support for Trans Athletes

Four Democrats in Tight House Races Retreat From Support for Transgender Athletes

Four Democrats running in competitive House races are airing campaign ads portraying…
Families of 9/11 victims to pack NYC court as Saudi gov't tries to dodge civil trial

9/11 Families Pack NYC Court as Saudi Arabia Fights Civil Trial

A federal appeals court will hear arguments Wednesday over whether Saudi Arabia…