Trump can keep California National Guard deployed for now, appeals court says

SAN FRANCISCO – An appeals court is allowing President Donald Trump, for now, to keep the California National Guard deployed in response to protests in Los Angeles, blocking a ruling Thursday by a federal judge that ordered the Trump administration to return control of the troops to California Gov. Gavin Newsom.

U.S. District Judge Charles R. Breyer wrote that the president acted illegally in dispatching the troops, “both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.” Breyer ordered Trump to relinquish control to the governor.

The Trump administration immediately appealed to the U.S. Court of Appeals for the 9th Circuit, calling Breyer’s order “an extraordinary intrusion” on Trump’s constitutional authority to deploy National Guard troops. The administration also accused the judge of second-guessing Trump’s military judgments as commander in chief.

In an order issued late Thursday, a three-judge panel agreed to stay Breyer’s order, which would have taken effect Friday at midday. The panel scheduled a hearing for Tuesday. While the judges did not explain their reasoning, the move appeared intended to maintain the status quo until they could review briefings in the case and hear arguments.

When asked for comment on the appeals court order, the governor’s office pointed to Newsom’s earlier remarks in which he said he was “confident in the rule of law.”

California sued Trump, Defense Secretary Pete Hegseth and the Defense Department this week, seeking to restrict what the National Guard and the Marines can do in Los Angeles and to allow them only to protect federal facilities and personnel. The state asked the judge to temporarily curb the troops’ actions and has questioned Trump’s right to deploy the National Guard and Marines in California without Newsom’s input or consent.

The administration called up 4,100 National Guard members and Marines in response to the protests, and 2,100 of the National Guard members are working in the L.A. area. All are part of Task Force 51, whose mission is to protect federal functions and property, according to U.S. Northern Command.

Newsom, a Democrat who has sparred frequently with the president, argued that he was not trying to prevent the military from carrying out that mission. Instead, he said, he was seeking “narrow relief tailored to avoid irreparable harm to our communities and the rule of law that is likely to result if Defendants are allowed to proceed with their plans to use Marines and federalized National Guard to enforce immigration laws and other civil laws on the streets of our cities.”

The Trump administration called Newsom’s request for the temporary restraining order “legally meritless” and said it “would jeopardize the safety of Department of Homeland Security personnel and interfere with the Federal Government’s ability to carry out operations.”

In its appeal, the Trump administration called the order “an extraordinary intrusion” on the president’s authority, including his power to “mobilize state National Guards into federal service to quell riotous mobs committing crimes against federal personnel.”

“The order also puts federal officers in harms’ way every minute that it is in place,” Trump’s team added.

Local officials have challenged framing by the right suggesting there is a citywide crisis or extensive violence playing out in Los Angeles. Los Angeles District Attorney Nathan Hochman told reporters this week that “99.99% of people” who live in the area “have not committed any illegal acts in connection with this protest whatsoever.”

Breyer’s 36-page ruling on Thursday was a striking broadside against the administration’s approach, with the judge writing that “the continued unlawful militarization” of Los Angeles “inflames tensions with protesters, threatening increased hostilities and loss of life.”

He said that while courts treat presidents’ decisions on foreign policy and national security with great deference, this case involves “domestic use of military force, a matter on which the courts can certainly weigh in.”

Contrary to Trump’s assertions, Breyer wrote that the Los Angeles demonstrations “fall far short of ‘rebellion.’” He said the Trump administration identified instances of people acting violently, but not “a violent, armed, organized, open and avowed uprising against the government as a whole.”

He also wrote witheringly about the administration’s portrayal of state and local officials being “unable to bring rioters under control.” The judge said it was not up to the federal government “to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws.”

In a news conference immediately after the ruling, Newsom echoed the ruling’s language. “There’s no invasion. There’s no rebellion,” he said. “It’s absurd.”

The governor called the issues in the case “a test of democracy.” Trump has continually tested the limits of democracy, he said, but the order “makes clear that he is not above or beyond constitutional constraints.”

In its motion Thursday, California had reiterated that it was seeking only limited relief while the court case unfolds. It asked Breyer to block the Guard troops and Marines “from patrolling the streets of Los Angeles and engaging in activities that pervasively entangle military forces with civilian law enforcement,” saying this was necessary to avoid inflaming tensions in the area.

At the same time, the state’s attorney general contended the Trump administration was offering “a breathtaking vision of unlimited, unreviewable executive power.”

At one point in the hour-long hearing, Breyer – a former Watergate prosecutor and younger brother of retired Supreme Court justice Stephen G. Breyer – brandished a paper copy of the U.S. Constitution, reading aloud from Article II, which describes the powers of the executive branch.

“We’re talking about the president exercising his authority. And the president is of course limited to his authority. That’s the difference between a constitutional government and King George,” he said. “It’s not that a leader can simply say something and it becomes it. It’s a question of a leader – a president or a governor – following the law as set forth in both the Constitution and statutes.”

Brett Shumate, a Justice Department attorney, defended Trump’s actions, arguing that as governor, Newsom was “merely a conduit” for the president’s orders.

“The president doesn’t have to call up the governor and invite him to Camp David and have a summit and negotiate for a week, on what are the terms, we’re going to call up the National Guard in your state and what are the terms of deployment – no,” he said. “There’s one commander in chief, and the states are subservient to the president.”

Shumate later argued that the state’s demand for a restraining order was inappropriate because the federalized troops in Los Angeles were only there to protect federal personnel and property, not to engage in law enforcement or participate in immigration raids.

During a congressional hearing Thursday that focused heavily on the politicization of the U.S. military, Defense Secretary Pete Hegseth, a former Fox News personality and previously an officer in the Army National Guard, refused to commit to following any future judicial orders that might rein in the administration’s domestic agenda – though later he added, “We’re not here to defy a Supreme Court ruling.”

Neither the Justice Department nor the Pentagon immediately responded to requests for comment after the lower court ruling.

Some of the protests that have taken place in Los Angeles since the first immigration raids last Friday have included clashes between protesters and police, sporadic looting and vehicles being set on fire. The Trump administration has portrayed the metropolis as being overwhelmed – despite much of the city and county being completely unaffected – and in need of federal assistance to maintain order.

State and local officials have repeatedly said they can manage the situation and accused the federal government of inflaming tensions by dispatching the military.

“We have a very good relationship with our governor,” Los Angeles Mayor Karen Bass said Thursday afternoon, repeating her point that Trump’s intervention was unnecessary. “If the National Guard is needed, I could have picked up the phone, called the police chief, called the sheriff, and said please make the request, and it would not have been denied.”

The governor said that when he again assumes control of the deployed Guard members, some would return to working on “border security” and working on counterdrug enforcement. Two years ago, Newsom doubled the number of California National Guard troops deployed at the U.S.-Mexico border to help intercept fentanyl and other illicit drugs.

Before the appeals court ruling, Jon Michaels, a law professor at the University of California Los Angeles, said he was watching for what comes next. An order may not deter Trump, Michaels said: He might ignore it, or he could invoke the Insurrection Act, as administration officials have suggested in recent days. Another possibility, Michaels added, would be sharply stepped-up immigration raids that trigger more protests, changing the situation on the ground and providing more justification for military involvement.

“They’re not really looking to de-escalate,” he said of the administration. “This has now become, for better or worse, a signature standoff for Newsom, and I don’t think Trump wants to lose to Gavin Newsom.”