Appeals court says President Trump can mobilize California National Guard

President Donald Trump can mobilize the California National Guard to protect federal personnel and property while enforcing immigration laws in Los Angeles, a federal appeals court ruled Thursday in a setback for Gov. Gavin Newsom who has opposed using the troops in response to protests that rocked the city last week.

Newsom had sued to block the Trump administration from calling in the National Guard, demanding they “return control of the California National Guard to Governor Newsom.” A federal trial court June 12 upheld a temporary restraining order sought by the governor.

But after hearing arguments Tuesday, a three-judge panel of the Ninth Circuit U.S. Court of Appeals granted the Trump administration an emergency order for a stay of that lower court ruling on grounds that they “made the required strong showing that they are likely to succeed on the merits of their appeal.”

The appellate judges noted that they disagreed with the Trump administration’s argument earlier this week that “the President’s decision to federalize members of the California National Guard … is completely insulated from judicial review.”

“Nonetheless,” the appellate panel continued, “we are persuaded that, under longstanding precedent … it is likely that the President lawfully exercised his statutory authority … which authorizes federalization of the National Guard when ‘the
President is unable with the regular forces to execute the laws of the United States.'”

California Attorney General Rob Bonta in a statement Thursday evening said that “while it is disappointing that our temporary restraining order has been stayed pending the federal government’s appeal, this case is far from over.”

“The Trump Administration far overreached its authority with its unprecedented and unlawful federalization of the California National Guard and deployment of military troops into our communities,” Bonta said. “While the court did not provide immediate relief for Angelenos today, we remain confident in our arguments and will continue the fight.”

Newsom said Thursday that “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 President is not a king and is not above the law,” Newsom said. “We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens.”

The American Civil Liberties Union said in a statement it was “deeply concerned” the decision from the Ninth Circuit Court of Appeals “grants the president sweeping authority to federalize the California National Guard without Gov. Gavin Newsom’s consent.”

“This ruling sets a dangerous precedent, undermines state sovereignty, and threatens the civil rights and civil liberties of Californians and all Americans,” the ACLU said.

But Trump called the appellate ruling a “BIG WIN” on his social media.

“The Judges obviously realized that Gavin Newscum is incompetent and ill prepared, but this is much bigger than Gavin, because 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,” Trump posted. “This is a Great Decision for our Country, and we will continue to protect and defend Law abiding Americans.”

Bonta noted that the appellate court, in granting the federal government’s motion, stayed the district court’s temporary restraining order barring Trump from mobilizing the California National Guard during the federal government’s appeal. The attorney general and governor did not indicate in their statements Thursday whether they would pursue other legal steps before the appeal is heard.

In granting the Trump administration’s a stay of the lower court ruling, the appellate panel noted that Congress authorized the President of the United States to “call into Federal service members and units of the National Guard of any State” whenever one or more of three conditions are satisfied.

Those conditions, the panel said, are whenever U.S. territory “is invaded or is in danger of invasion by a foreign nation,” or “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” or “the President is unable with the regular forces to execute the laws of the United States.”

Citing earlier court rulings, the panel said that “the power confided to the President is a limited power” that “can be exercised only in
the cases pointed out in the statute.”

The panel found that Trump would likely prevail on the administration’s claim that “the President is unable with the regular forces to execute the laws of the United States,” rejecting the lower court argument that the statute “does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws.”

The panel responded that the statute “cannot plausibly be read to mean” that “so long as any quantum of federal law enforcement could be accomplished in the face of mob violence, the President would be unable to call up the Guard to respond.”

The panel also rejected Newsom’s argument that Trump was obligated to issue his federalization orders for the California National Guard “through” the governor, writing that Trump’s Secretary of Defense’s transmittal of the order to the Adjutant General of the California National Guard — who is authorized under California law to “issue all orders in the name of the Governor” — should suffice.

The emergency appeal was heard and decided by judges Mark J. Bennett, Eric D. Miller, and Jennifer Sung. Bennett and Miller were appointed by Trump, and Sung by former President Joe Biden. The trial court case was decided by U.S District Judge Charles R. Breyer, appointed by former President Bill Clinton.