9th Circuit upholds stay of TRO blocking Trump's federalization of California Guard

The 9th U.S. Circuit Court of Appeals has denied rehearing of a stay of a San Francisco district judge's temporary restraining order blocking the deployment of federalized California National Guard troops to Los Angeles over the heated objections of several of the court's liberal members.

The decision is one of two lawsuits before the 9th Circuit involving deployments ordered by President Donald Trump to Los Angeles and Portland. The latest ruling, on Wednesday, followed a three-judge panel's decision to stay Senior U.S. District Judge Charles R. Breyer's TRO pending appeal. Other decisions by Breyer, including the state's argument that the deployment violated the Posse Comitatus Act of 1878, were addressed during oral arguments Wednesday but not in the opinion.

Senior 9th Circuit Judge Marsha Berzon, an appointee of President Bill Clinton, wrote a pointed statement disagreeing with the decision to deny rehearing of the panel decision en banc. Newsom et al. v. Trump et al., 25-3727 (9th Circ., filed June 12, 2025).

"For the first time in the nearly 250-year history of this country, the President claims extraordinary, unilateral powers to order state National Guard troops onto the streets of select cities in response to short-term, hyper-localized, domestic protests of federal policies," she wrote. "This claimed authority clashes directly with the traditional strong resistance of Americans to military intrusion into civil affairs. That venerable tradition traces to the British use of troops immediately preceding the American Revolution to enforce oppressive legal measures and is reflected in the Declaration of Independence and several provisions in the Constitution."

Seven active judges appointed by Democratic presidents -- including 9th Circuit Judge Ronald M. Gould, who wrote a dissent -- joined Berzon's statement.

"The democratic ideals our nation has consistently promoted for the last quarter millennium will be gravely undercut by allowing military force and weapons of war to be deployed against American citizens on U.S. soil on the flimsy grounds asserted here for this use of Executive power," Gould wrote.

But nine other Democratic appointees did not join Berzon or Gould. Three senior judges, all appointed by Democratic presidents, joined Berzon's statement - but senior judges cannot vote on whether the 9th Circuit, with 29 active judges, rehears the case en banc. The ruling does not address the merits of the case, which is pending.

Meanwhile, the California attorney general's office filed a motion Wednesday night to intervene in Trump's attempted deployment of 215 of its federalized National Guard troops to Portland. The three-judge 9th Circuit panel denied California's motion to intervene in the Portland case Thursday but agreed to accept the motion as an amicus brief instead.

The panel on Monday stayed a decision by U.S. District Judge Karin J. Immergut blocking the federalization of National Guard troops on Monday, with 9th Circuit Judge Ryan D. Nelson -- in a concurring opinion -- writing that such deployments under 10 U.S.C. § 12406 "are not reviewable by federal courts." State of Oregon et al. v. Trump et al., 25-6268 (9th Circ., filed Oct. 5, 2025).

Senior 9th Circuit Judge Susan P. Graber wrote a pointed dissent accusing the panel majority, both appointed by Trump, of ruling based on the administration's "fabrication or propaganda. I urge my colleagues on this court to act swiftly to vacate the majority's order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer."

A decision on whether the 9th Circuit will rehear the Portland case en banc could happen any day. There also is a case concerning deployment of National Guard troops to Chicago that may move the fastest to the U.S. Supreme Court, which has a 6-3 majority of Republican appointees and has consistently ruled in favor of the Trump administration.