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A federal appeals court is allowing President Donald Trump’s deployment of California National Guard soldiers to continue while it considers Trump’s challenge to a lower court’s decision that found he illegally mobilized those troops without consulting Gov. Gavin Newsom.
The 9th Circuit Court of Appeals will hear the case June 17. The soldiers can remain in the city at least until then, barring any other legal moves by Newsom’s team.
The appeals court issued its pause just hours after Judge Charles Breyer wrote that Trump’s “actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.” Breyer’s ruling in a lawsuit filed by Newsom would have put the troops back under the governor’s control.
Trump’s lawyers sought the pause on Breyer’s decision, writing that the “district court has entered an unprecedented order enjoining the President from deploying National Guardsmen to protect federal officers from ongoing violent protests and attacks, and to protect federal property from further damage.” The White House in a 300-plus page court filing also argued that the judge was “second-guessing” the president in a “gross violation of the separation of powers.”
Lawyers representing the Newsom administration were seeking an order to prevent the troops from performing law-enforcement duties and to instead limit their role to protecting federal property.
At a hearing Thursday, Judge Breyer seemed to take a dim view of the administration’s argument that presidents have broad, unreviewable authority to commandeer state National Guard personnel.
“The president is of course limited to his authority,” Breyer said during the Thursday hearing. “That’s the difference between a constitutional government and King George.”
He doubled down on that point in his order, writing that “the Court is not convinced that the judiciary cannot question presidential assertions about domestic activities leading to military action.”
Trump and Secretary of Defense Pete Hegseth sent the National Guard into L.A. last weekend and readied the Marines to do the same, over the objections of Newsom and elected officials in Los Angeles.
Earlier today Hegseth refused to say whether he would follow the courts if they ruled against the deployment of active-duty Marines to Los Angeles during a congressional hearing Thursday.
Breyer seemed to have that in mind when he stressed to the administration’s lawyers that parties in a lawsuit are obligated to follow court orders.
“That’s right, isn’t it?” he said.
The federal attorney representing Trump nodded to the judge.
“The federal government is agreeing with me on this issue,” Breyer said.
Throughout the proceedings, which ranged from heady constitutional analysis to a deep semantic debate over the word “through,” Breyer seemed unconvinced by the federal government’s key arguments: That the president did not need to consult Newsom before seizing control of the National Guard and that judges have no power to second-guess his decision to do so.
“How is that any different from what a monarchist does?” Breyer said when discussing those arguments.
Breyer’s order was part of several legal steps moving on parallel tracks: the decision to temporarily block Trump’s takeover of the Guard and then the wider issue of whether that was legal. Both matters can move through the courts. Breyer hasn’t ruled on the broader legal issues of the case. Once he does, either Newsom or Trump will likely appeal his ruling.
In his order, Breyer wrote that Trump’s White House “did not notify Governor Newsom of their intent to federalize the California National Guard,” ultimately supporting Newsom’s contention that Trump never gave him a heads up.
In calling in the troops, the administration argued that the armed forces will do what local law enforcement has so far been unable to do: Bring order to the streets of L.A. Critics, including Newsom, counter that sending soldiers — especially Marines trained for the battlefield — to quell a civil disturbance is just as likely to inflame the situation and ratchet up the risk of violence.
Trump ordered the National Guard to Los Angeles on Saturday after protests broke out in response to federal immigration officers raiding work sites and arresting individuals they say are in the country without authorization. Trump’s order cited “incidents of violence and disorder” in his message. The soldiers will “temporarily protect” the immigration enforcement officers, the memo said.
The president has so far ordered 4,000 National Guard and 700 U.S. Marine troops to L.A. Breyer, who was appointed to the bench by President Bill Clinton, seemed unwilling to weigh in on the question of the Marines, if only because they have yet to arrive in Los Angeles.
Trump has not yet invoked the Insurrection Act, a law that would give him more authority to deploy troops domestically and use them for law enforcement. As is, the National Guard soldiers are charged with protecting federal agents and buildings.
But that didn’t stop Breyer from observing that Trump’s own social media posts sought a wider role for troops. He noted that Trump reportedly wrote online that he had directed his cabinet officials to “liberate Los Angeles from the Migrant Invasion” and that “we’re going to have troops everywhere.”
The judge wrote that “certainly differs from the circumscribed role professed in the opposition brief.”
After the ruling came down, Attorney General Rob Bonta said, “The truth is, the president is looking for any pretense to place military forces on American streets to intimidate and quiet, those who disagree with him. It’s not just immoral. It’s dangerous. And it’s illegal.”
Core to Trump’s justification was a federal statute that only one president had previously used, Bonta’s legal team wrote. President Richard Nixon employed it so that the National Guard could deliver the mail during the U.S. Postal Service strike of 1970. It’s also the first time since 1965 that a president federalized a state National Guard without the request of a governor.
Newsom and Bonta sued Monday after the governor formally asked Trump to rescind his activation of the Guard. They filed the suit just as news outlets began reporting that Defense Secretary Pete Hegseth would deploy the U.S. Marines to Los Angeles, as well. On Tuesday Newsom and Bonta sought a temporary restraining order to halt both deployments.
Generals side with Newsom
Newsom argued that involving the Marines and National Guard harms state sovereignty, drains California’s resources and “escalates tensions and promotes (rather than quells) civil unrest.”
That argument earned the endorsement of two former service secretaries and six retired four-star admirals and generals on Wednesday night. In a court filing, the former leaders, who have collectively served each president from John F. Kennedy to Barack Obama, argued that because Trump did not invoke the Insurrection Act or clearly define the role of the troops, the deployment “poses multiple risks to the core mission of the National Guard and the Marines, and to the well-being of the troops.” They add that the deployment risks “inappropriately politicizing the military.”
Newsom’s suit says the city does not need the military to keep the peace. “To put it bluntly, there is no invasion or rebellion in Los Angeles; there is civil unrest that is no different from episodes that regularly occur in communities throughout the country, and that is capable of being contained by state and local authorities working together,” the suit said.
Judge Breyer agreed that the pockets of unrest during the protests didn’t rise to the level of “rebellion” that would warrant Trump’s calling in the National Guard, writing that “violence is necessary for a rebellion, but it is not sufficient.”
Breyer added: “Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole”
Lawsuit tests executive power
Newsom also maintains that a president cannot deploy the National Guard without approval from the state governor. Newsom and Bonta cite the government code that permits Trump to deploy the National Guard, which says federalizing the troops is “issued through” the governor.
The Trump legal team offers the opposite interpretation of the government code: “The statute is thus clear that the orders are issued by the President, and they are conveyed through State officials. Nothing in the statute entitles a Governor to veto or impede a valid presidential order,” the team wrote in their filing on Wednesday.
Breyer seemed to look upon that argument with deep skepticism.
“I’m trying to figure out how something is ‘through’ somebody if in fact you didn’t give it to them,” he said to federal attorney Brett Shumate.
Shumate had argued that “the governor is merely a conduit, He’s not a roadblock, the President doesn’t have to call up the governor.”
The judge also shot down Shumate’s argument that Trump properly briefed Newsom on his plans to federalize the National Guard, saying that without a clear record of what Trump told Newsom, there’s no evidence that Newsom was briefed.