The 9th Circuit Rejects Trump’s Audacious Claim That He Can Use the National Guard However He Likes
Last week, a federal judge in San Francisco issued a temporary restraining order against President Donald Trump’s unilateral deployment of the California National Guard, saying that decision was illegal and unconstitutional. That same day, the U.S. Court of Appeals for the 9th Circuit imposed an administrative stay on U.S. District Judge Charles Breyer’s order, and on Thursday the court decided the stay should continue while the case is pending.
That ruling represents both a victory and a defeat for the Trump administration. The three-judge panel unanimously concluded that the president probably complied with the statute he cited to justify the deployment. But it also unanimously rejected Trump’s bold argument that it had no business addressing that issue because his decision was “unreviewable.”
On June 7, in response to protests against immigration raids in Los Angeles, Trump instructed Defense Secretary Pete Hegseth to deploy 2,000 National Guard members, describing their mission as protecting federal personnel and facilities from “violence and disorder.” California’s Democratic Gov. Gavin Newsom immediately objected to that deployment, which was later increased to 4,000 troops, describing it as unnecessary, inflammatory, and illegal. Two days later, Newsom filed the federal lawsuit that resulted in Breyer’s order.
In his memo to Hegseth, Trump invoked his authority under 10 USC 12406. That law authorizes the president to “call into Federal service members and units of the National Guard of any State” in three circumstances: 1) when the United States “is invaded or is in danger of invasion by a foreign nation,” 2) when “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” or 3) when “the President is unable with the regular forces to execute the laws of the United States.”
In response to Newsom’s lawsuit, the government asserted both of the latter two conditions. Breyer concluded that neither condition had been met. But according to the 9th Circuit, Breyer failed to give Trump the deference that Supreme Court precedent suggests he deserves under Section 12406.
“We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under [Section 12406] is completely insulated from judicial review,” the appeals court said in its unsigned order. “Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to [Section 12406], our review of that decision must be highly deferential.”
That “statutory predecessor” was the Militia Act of 1795, which the Supreme Court applied in the 1827 case Martin v. Mott. The 1795 law authorized the president to call up the militia “whenever the United States shall be invaded, or be in imminent danger of invasion,” and the case involved a New York militia member who flouted a mobilization order during the War of 1812. The Court unanimously agreed that “the authority to decide whether the exige
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