9th Circuit allows Trump to keep control of National Guard in LA

In a major victory for President Donald Trump, a 9th U.S. Circuit Court of Appeals panel granted a stay of a San Francisco district judge's temporary restraining order and allowed him to keep control of the California National Guard to assist U.S. Immigration and Customs Enforcement agents with immigration enforcement in Los Angeles.

The Thursday night ruling maintains the status quo but sets a significant precedent - at least for now. Newsom v. Trump et al., 25-3727 (9th Circ., filed June 12, 2025).

The judges denied the U.S. Department of Justice's argument that Trump's decision to federalize the guard is not subject to judicial review but ruled in the president's favor that he has expansive power to take such actions even if opposed by Gov. Gavin Newsom.

"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 panel wrote in a per curiam order. "Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential."

"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 panel wrote in an unsigned order.

The panel was comprised of two Trump appointees, Judge Mark J. Bennett and Judge Eric D. Miller, and one appointee of President Joe Biden, Judge Jennifer Sung.

The decision reversed a temporary restraining order issued June 12 by Senior U.S. District Judge Charles R. Breyer of San Francisco, an appointee of President Bill Clinton who ruled Trump's actions were illegal because they violated the 10th Amendment.

""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," Breyer wrote, directing that control of the National Guard be returned to Newsom.

But the 9th Circuit panel put Breyer's TRO on hold a few hours after he signed it.

In Thursday's opinion, the appellate judges relied heavily on an 1827 U.S. Supreme Court decision stemming from a lawsuit by a New York farmer who was fined under the Militia Act of 1795 for failing to serve in the War of 1812. Martin v. Mott, 25 U.S. 19 (1827).

"The history of Congress's statutory delegations ... and a line of cases beginning with Martin ... interpreting those delegations strongly suggest that our review of the President's determinations in this context is especially deferential," the panel wrote.

The federal statute was passed by Congress in 1994 and is based on a 1903 predecessor.

"That is an express delegation [by Congress] that couldn't be any more clear that the president gets to decide how many forces are necessary to quell the rebellion, to execute federal laws," Assistant Attorney General Brett A. Shumate told the panel.

Trump has federalized about 4,000 California National Guard troops and sent roughly 700 Marines to Los Angeles.

"Under a highly deferential standard of review, Defendants have presented facts to allow us to conclude that the President had a colorable basis for invoking § 12406(3). They presented evidence, detailed above, of protesters' interference with the ability of federal officers to execute the laws, leading up to the President's federalization of the National Guard on June 7," the panel wrote.

The judges also said it did not matter that Trump issued his order to the National Guard's adjutant general instead of Newsom, adding that the statute "does not give governors any veto power over the President's federalization decision."

Trump, on his Truth Social platform, hailed the panel's ruling as a "BIG WIN" and wrote that it means "all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done."

Newsom expressed disappointment with the 9th Circuit's decision in a statement.

"The court 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 governor wrote. "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."

Breyer is scheduled to hold a hearing on the case Friday morning.