Judge Rules Trump Acted Illegally in Federalizing California’s National Guard, But Appeals Court Stays Order
A U.S. appeals court temporarily halted a judicial order that would have forced U.S. President Donald Trump to return control of California’s National Guard to its governor.
The U.S. Court of Appeals for the Ninth Circuit issued a stay on Thursday evening, halting a lower court’s order from going into effect today at noon.
The court case stems from Trump’s decision to call in 2,000 members of California’s National Guard last weekend to protect U.S. Immigration and Customs Enforcement (ICE) agents who have been carrying out widespread immigration raids in Los Angeles, California. The activity spurred pushback from local constituents, some of whom engaged in property damage and acts of violence to disrupt the ICE agents’ activity.
Trump subsequently deployed the National Guard on 7 June to protect ICE agents and federal buildings in Los Angeles. He did so without formally notifying California Governor Gavin Newsom, who said local law enforcement could manage the protests. Trump claimed that the demonstrators and their acts of violence “constitute a form of rebellion against the authority of the government of the United States.”
After the National Guard personnel arrived in Los Angeles on 8 June, however, the protests grew from about 800 people in two locations to roughly 3,500 near the Metropolitan Detention Center. Newsom’s administration sent a letter to U.S. Secretary of Defense Pete Hegseth explaining that the deployment of the National Guard did not comply with the law and that local law enforcement resources were sufficient to maintain order.
In response, Hegseth posted on social media that he would be deploying 700 U.S. Marines from Camp Pendleton to Los Angeles to help restore order and defend federal law enforcement officers. Hegseth also authorized the deployment of an additional 2,000 National Guard members for 60 days.
Newsom then filed a lawsuit to limit Trump’s use of the National Guard and the Marines’ activity in California.
“The president’s actions have not only caused widespread panic and chaos but have unnecessarily created an additional diversion of resources as the state tries to calm a community terrorized by this reckless federal action,” Newsom said in a statement sent to Security Management.
The Lower Court Findings
On Thursday evening, Judge Charles Breyer of the Federal District Court in San Francisco issued his opinion that Trump did not follow the congressionally mandated procedure to deploy the National Guard and acted illegally. Breyer granted a temporary restraining order, which required the Trump administration to return control of California’s National Guard to Newsom and refrain from deploying more members of the National Guard to Los Angeles.
Trump’s “actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” Breyer wrote. “He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
Breyer explained that it is not up to the president’s sole discretion to determine if a rebellion is taking place or is in danger of occurring—potential justification for deploying military troops in a domestic setting.
Breyer wrote that the activity in Los Angeles fell far short of what could be considered a rebellion. A rebellion, as defined by the courts, requires individuals to be armed, organized, open and avowed, and against the government as a whole rather than in opposition to a single law or issue.
“Violence is necessary for a rebellion, but it is not sufficient,” Breyer wrote. “Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are ‘armed’ in a 1903 sense—the court is aware of no evidence in the record of actual firearms—there is little evidence of whether the violent protesters’ actions were ‘open or avowed.’ Some presumably engaged violently with officers at close quarters in the daylight, while many others threw items under cover of darkness, protected by a crowd, identities concealed.
“Certainly the peaceful protestors were ‘organized’ to some degree, in that people knew generally where to go to participate in protests, but there is no evidence of organized, as apart from sporadic or impromptu, violence,” Breyer continued. “Nor is there evidence that any of the violent protests were attempting to overthrow the government as a whole; the evidence is overwhelming that protests gathered to protest a single issue—the immigration raids.”
Breyer also added that he was troubled by the U.S. government’s argument that protest against the federal government, a protected First Amendment right, can justify a finding of rebellion.
“In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone,” Breyer wrote. “The idea that protestors can so quickly cross the line between protected conduct and ‘rebellion against the authority of the government of the United States’ is untenable and dangerous.”
Additionally, Breyer explained that the law does not allow the president to federalize the National Guard when he faces obstacles or some risks that cause him to underperform in executing the laws—such as conducting successful immigration raids. The law only allows the president to federalize the National Guard if he is unable to execute the laws of the United States, which Breyer said was not the case in California since ICE has so far successfully detained 70 to 80 people and arrested 44 others.
Furthermore, Breyer added that the Trump administration did not follow the procedural requirement to notify Newsom that it was deploying the National Guard to California. Newsom only learned of the deployment when California’s adjutant general forwarded him a U.S. Department of Defense order on 7 June.
The Trump administration said that it had complied with the requirement because at the top of the order sent to the adjutant general was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.”
“But an interpretation of [the requirement] that permits the president to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]’ at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders ‘shall be issued through the governors,’” Breyer wrote, underlining a key element.
Next Steps
The Trump administration filed an appeal to pause Breyer’s temporary restraining order, which the Ninth Circuit granted while it reviews the case.
Some aspects of the suit that Newsom’s administration filed remain outstanding with Breyer, including the possibility of restricting the U.S. Marines actions in California and whether National Guard troops standing alongside ICE officers engaged in executing the law are also engaged in that same activity. Breyer scheduled a hearing for 20 June at 10 a.m. local time for arguments on the matter.
“Our success today in court is a win for all Americans,” Newsom said in a statement sent to Security Management. “The president’s action to turn the military against its own citizens threatened our democracy and moved us dangerously close to authoritarianism. We will continue to stand up for our democracy and the rights of all Americans. The country is watching.”
With the appellate court stay, it is unclear if the presence of the National Guard or Marines in California will change during the weekend. But the protest movement in Los Angeles and Trump’s plans for a major military parade on Saturday in Washington, D.C., has spurred preparations for thousands of demonstrations across the United States and Europe this weekend.
The demonstrations are called “No Kings” and part of a “nationwide day of defiance,” according to the movement’s website. “From city blocks to small towns, from courthouse steps to community parks, we’re taking action to reject authoritarianism—and show the world what democracy really looks like.”
No Kings also said it is committed to nonviolent actions and that weapons of any kind should not be brought to its events.
In a protest activity brief from Prosegur Security’s Global Risk Services Division, analysts said the No Kings demonstrations are likely to see high turnout and will start peacefully but could produce violent clashes with police, military personnel, or counter protestors.
“There is an elevated risk of a vehicle ramming incident at protests, given the high tensions and popularity of the modus operandi for executing mass attacks over the past year,” Prosegur analysts wrote. “Should protests in other major urban cities become violent, President Trump might decide to deploy the National Guard in other prominent liberal strongholds such as New York City, Boston, or Portland. Should he do so, protests are liable to grow larger and more volatile.”
For more insights on demonstrations and civil unrest, read our series on mass protests and activism.