Actions taken by President Trump in relation to Gov. Gavin Newsom drew scrutiny over whether they fell within the boundaries of executive authority. The 9th Circuit Court of Appeals ruled Friday that Newsom holds lawful authority over the California National Guard, upholding his decision to send additional troops into Los Angeles and elsewhere in the state during demonstrations against the federal government's mass deportation initiative.
The split decision — two judges in favour, one opposed — saw Jennifer Sung of Portland and Eric D. Miller of Seattle form the prevailing side, while Mark J. Bennett of Honolulu authored a dissent. In her opinion for the two-member majority, Sung concluded that the executive order had overstepped the boundaries set by statute, encroached on Congress's constitutional authority to call forth the militia, ran counter to separation-of-powers doctrine, and therefore lacked legal force.
California Attorney General Rob Bonta contended that the administration was relying on the same seldom-used statutory provision to retain command over California's National Guard — a legal pathway that administration lawyers maintained would vest the president with authority over those troops without activating the broader powers the Insurrection Act makes available.
Three judges on the 9th Circuit panel were among the earliest courts to examine the statute, taking up the matter after the president deployed 4,000 National Guard troops in the wake of protests tied to immigration enforcement activity in Los Angeles. The state of California initiated legal proceedings. A halt to the deployment was put in place by U.S. District Judge Charles R. Breyer following a swift ruling on the matter.
Those three judges — Sung, Bennett, and Miller — set aside that order, concluding that a little-used and largely untested provision within the statute permitted the California deployment to proceed. Under that ruling, courts were left with only a narrow basis on which to scrutinize a president's justification for ordering troops into domestic territory, with the applicable standard demanding substantial judicial deference to executive judgment.
A separate three-judge panel of the 9th Circuit, also sitting in Portland, blocked the withdrawal order issued by U.S. District Judge Karin Immergut, drawing on the legal reasoning established by the earlier panel's ruling. Judge Jay Bybee subsequently submitted a court filing urging reconsideration of the Portland ruling and a revised interpretation of the statute — a move that followed the Department of Justice's disclosure that portions of the data underlying that decision had contained inaccuracies. Within the document, Bybee contended that federal attempts to extend authority over matters ordinarily governed at the state level represented the most serious threat to state sovereignty.
A three-judge 7th Circuit panel concluded that the evidentiary basis put forward for the deployment fell short of what was required — even when measured against the more permissive standard the 9th Circuit had applied — sending the matter to the Supreme Court. In a December 23rd ruling, the justices sided with an interpretation put forward by a Georgetown academic, concluding that the statute permitted presidential mobilisation of National Guard forces only when circumstances had already exceeded the capacity of the regular military. A withdrawal order sent federalized troops out of Los Angeles that December.
Applying the plain text of the statute alongside dictionary definitions of the term in question, the 9th Circuit's majority concluded on Friday that the president had not produced evidence of "a violent, armed, organized, open and avowed uprising against the government as a whole" — or anything approaching that threshold — finding that his characterization of Los Angeles as being in a state of rebellion fell outside what the court described as any honest range of judgment.
The ruling noted that Justice Department attorneys had relied on secondary definitions of "rebellion" — an approach the 9th Circuit found broad enough to permit the president to deploy troops against nearly any form of pushback, including gatherings that posed no threat of violence. Judge Sung held that non-violent, unarmed, and decentralised opposition directed at something less than the government in its entirety does not ordinarily call for a military response, and that because the defendants had not pointed to any legal authority permitting the armed forces to carry out civilian law enforcement in California, they had not met their burden of demonstrating that the president held the power to place the state's National Guard under federal command.
