Judge blocks Trump's federalization of California guard, but 9th Circuit panel stays order

President Donald Trump's federalization of the California National Guard will remain in place, at least for now, after a 9th U.S. Circuit Court of Appeals panel granted the U.S. Department of Justice's petition late Thursday to stay a San Francisco federal judge's temporary restraining order blocking it.

The three-judge panel's decision was issued just a few hours after Senior U.S. District Judge Charles R. Breyer ruled Thursday that Trump's action violated the Tenth Amendment. Newsom et al. v. Trump et al., 25-3727 (9th Circ., filed June 12, 2025).

"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," wrote Senior U.S. District Judge Charles R. Breyer, an appointee of President Bill Clinton.

"His actions were illegal -- both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution," the judge added. "He must therefore return control of the California National Guard to the Governor of the State of California forthwith." Newsom et al. v. Trump et al., 25-cv-04870 (N.D. Cal., filed June 9, 2025).

But Breyer's decision did not last long and will not go into effect, as he ordered, at noon Friday. Instead, a 9th Circuit panel - comprised of Judge Mark J. Bennett and Eric D. Miller, both appointed by Trump; and Judge Jennifer Sung, an appointee of President Joe Biden - put Breyer's temporary restraining order on hold.

The panel ordered the state to respond to the Trump administration's emergency motion on Sunday and scheduled a hearing on Tuesday.

Trump invoked a section of a 1903 federal law, 10 U.S.C. § 12406, to federalize the National Guard, stating in an order that "numerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by U.S. Immigration and Customs Enforcement and other United States Government personnel."

Assistant Attorney General Brett A. Shumate told Breyer during Thursday's hearing that the courts had no authority to decide whether the president's order was lawful.

"Our position is that it's not subject to judicial review," he told Breyer.

The judge was skeptical of Shumate's arguments during the hearing and disagreed in his ruling. "At bottom, § 12406 does not reserve to sole presidential discretion the determination of whether a rebellion has or is in danger of occurring or whether the President is unable to execute federal law," Breyer wrote.

Shumate also cited the statute's language concerning the rebellion or danger of rebellion, as well as the government's inability to execute federal laws with regular forces, to support its argument against the state's lawsuit.

The judge ruled that the president's determinations were subject to judicial review, especially because the case "is not one involving the kind of foreign policy or national security questions that traditionally are left to the President. It instead implicates the President's domestic use of military force, a matter on which the courts can certainly weigh in."

"At bottom, § 12406 does not reserve to sole presidential discretion the determination of whether a rebellion has or is in danger of occurring or whether the President is unable to execute federal law," Breyer wrote.

The judge also ruled that the protests, sometimes violent, in Los Angeles did not qualify as a "rebellion" nor did they make it impossible for the administration to enforce federal law.

"Defendants have still not established a factual basis -- again, even assuming their factual assertions to be correct -- from which this Court can conclude that there is a danger of an organized, violent, armed uprising with the goal of overthrowing the lawful government of the United States," Breyer wrote.

But as the 9th Circuit's Thursday night stay illustrated, the legal battle, as well as the clashes on the ground, are far from over. The case is eventually expected to be decided by the U.S. Supreme Court, and Trump has other options - including invocation of the Insurrection Act of 1807 -- to explore.

Breyer wrote that it was premature to rule on any violations due to the administration's promised deployment of Marines in Los Angeles, which Deputy Attorney General Nicholas R. Green said during Thursday's hearing violated the Posse Comitatus Act of 1878, which generally prohibits the use of the military for domestic law enforcement

The judge, however, said it was premature to get into arguments about what the Marines might do even though Green told him that 140 Marines would be deployed in Los Angeles "within 24 hours."

"As of now, the Court only has counsel's speculation of what might happen," Breyer wrote.

During the hearing, the judge said "the president is of course limited to his authority. That's the difference between a constitutional government and King George. ... This country was founded in response to a monarchy and the Constitution is a document of limitations."

U.S. Secretary of Homeland Security Kristi Noem -- in a press conference earlier Thursday -- asserted that U.S. Immigration and Customs Enforcement agents have been assaulted and attacked with bottles and hammers, then aim at Newsom and Los Angeles Mayor Karen Bass.

"We are not going away," she said. "We are staying here to liberate the city from the socialists and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into this city."

Noem's press conference was interrupted by U.S. Sen. Alex Padilla, D-CA, who tried to ask her a question but was pushed out of the room by federal agents, shoved to the floor, and handcuffed. A Padilla spokesperson said in a statement that he was not detained.

Breyer issued an order to show cause concerning why he should not issue a preliminary injunction against the Trump administration, and he scheduled a hearing for June 20. The 9th Circuit panel will take up his TRO three days before.