APPEALS COURT RULES TRUMP'S DEPLOYMENT OF NATIONAL GUARD TO LOS ANGELES IS LEGAL

UpdateJune 21:  The Ninth Circuit  Court of Appeals has ruled that Trump can retain control of the National Guard. ECM news partner 10 news reports.  It remains to be seen whether California will appeal the decision to the U.S. Supreme Court.  The Ninth Circuit ruling overturns the lower court ruling discussed in our June 12 article below.

By Miriam Raftery

June 12, 2025 (Oakland, CA) – In a blistering decision, U.S. District Court Judge Charles Breyer today ordered control of California’s National Guard be returned to the Governor, though the Judge stayed his order until tomorrow afternoon to allow the Trump administration time to file for an emergency appeal.

The judge’s order states that in ordering thousands of California National Guard members to Los Angeles amid civil unrest  over mass immigration enforcement, President Donald Trump’s actions were “illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”

Judge Breyer rejected an argument by a Trump administration lawyer, who had claimed courts do not have authority to review a president’s decision on whether the National Guard was needed.

“That’s the difference between a constitutional government and King George,” stated Judge Breyer, a Clinton appointee and brother of former Supreme Court Justice Stephen Breyer.

With peak wildfire season approaching, Judge Breyer noted that tying up thousands of California’s National Guard members for 60 days would make them unavailable to fight wildfires or address other emergencies, such as the Guard members who helped San Diegans during last January’s severe floods.

The protests have at times turned violent, with rocks thrown at ICE officers and several vehicles burned. However, Judge Breyer wrote that plaintiffs and citizens of Los Angeles “face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions...Defendants’ actions also threaten to chill legitimate First Amendment expression.”

At the hearing, Justice Department lawyer Brett Shumate argued that President Trump had no legal obligation to get approval from a governor before mobilizing the National Guard.  "There is one commander-in-chief of the armed forces--and when the President makes a decision, the states are subservient to the president's decision," Shumate contended, an argument rejected by Judge Breyer.

The victory, if upheld, is a win for California Governor Gavin Newsom and Attorney General Rob Bonta, who filed the lawsuit against the Trump administration challenging Trump’s deployment of California’s National Guard, an action opposed by California’s Governor as well as by Los Angeles Mayor Karen Bass and the Los Angeles Police Chief.

While rare, presidents have occasionally ordered National Guard troops into states without a Governor’s permission, such as to enforce a Supreme Court order to desegregate schools in the South, after the state failed to do so.

But Trump invoked a law that allows such an order only in cases of a rebellion or insurrection, which Judge Breyer held has not occurred in L.A., where protests have not risen to the level of “protests or riots that Los Angeles and other major cities have seen at points in the past,” he wrote.

While acknowledging that the federal government does have an interest in protecting federal agents and federal property, Judge Breyer suggested such interests may be better served by ”de-militarization and a concurring de-escalation

Governor Newsom praised the decision on X,  posting, “The court just confirmed what we all know. The military belongs on the battlefield, not on our city streets.” He called on President Trump to “end the unnecessary militarization of Los Angeles now,” adding, “Refusing to do so will only confirm your authoritarian tendencies. The country is watching.”

The Justice Department has indicated it plans to appeal the ruling.

During a Congressional hearing today before the decision was announced, Defense Secretary Pete Hegsdeth refused to comment on whether he would follow a court order regarding the deployment of National Guard members, when asked by a Democratic Congressional member. But Hegsdeth claimed that the U.S. should not have "local judges determining foreign policy or national security policy for the country," the Hill reports.

Attorney General Rob Bonta issued a statement that reads in part, “With this order, the Trump administration is blocked from using federalized California National Guard troops to patrol our neighborhoods or carry out civilian law enforcement work. The right to peacefully protest is a cornerstone of any healthy democracy. We will not stand idly by as the President attempts to intimidate and silence those who disagree with him.  As the President attempts to inflame tensions and stoke fear in our communiti9es, California and our local law enforcement stand ready to protect our communities and their right to make their voices heard safely and peacefully.”

Should violence escalate, Governor Newsom will still have the right to deploy the National Guard--as he did in the days after the La Mesa riot in 2020 to protect the public.

The lawsuit was filed before President Trump later deployed around 700 U.S. Marines to the streets of Los Angeles.  Judge Breyer's order did not include a conclusion on the legality of deploying the Marines in Los Angeles, however CNN reports the order did temporarily grant California's request to bar Trump from using Marines, an issue the appellate court may now address.

But Judge Breyer made clear his finding that “an injunction restraining the President’s use of military force in Los Angeles is in the public interest.”