On June 19, 2025, the Ninth Circuit Court of Appeals issued a stay on the temporary restraining order in place against President Donald Trump's deployment of National Guard troops in California without the Governor's permission.
On social media, President Trump claimed that it provided justification for him to use the National Guard in any situation where he feels local law enforcement isn't up to the task. Gavin Newsom, Governor of California, noted that the appellate panel had markedly disagreed with President Trump's assertion that his use of 10 U.S.C. § 12406 to federalize National Guard troops is not subject to judicial review, and that the matter is still being litigated.
The final decision on the constitutionality of President Trump's deployment action will likely provide important precedent that will not sit well with either the "He's Within His Powers" or the "No More Kings" sides. It will depend on the interpretation of 10 U.S.C. § 12406 by the U.S. District Court of Northern California, although the U.S. Supreme Court might weigh in at some point as well.
Presidents and Governors and Guardsmen, Oh My
Protests against raids by U.S. Immigration and Customs Enforcement (ICE) have become commonplace, and California is no exception. Enraged by the sorties carried out against day workers by those claiming to be ICE agents while also wearing masks and refusing to identify themselves, protesters in Los Angeles took to the streets in early June 2025.
Without Governor Newsom's approval, President Trump ordered 4,000 National Guard troops to be deployed in the city on June 7. He later added 700 Marines, over the objections of Gov. Newsom and Los Angeles Mayor Karen Bass, who both insisted the entire deployment was unnecessary.
After being rebuffed by Gov. Newsom, President Trump went through an adjutant general who, as a senior member of the state National Guard, federalized the troops. Citing violations of the Posse Comitatus Act, Gov. Newsom filed suit against President Trump and Secretary of Defense Pete Hegseth on June 9, claiming that the Constitution holds that a state's National Guard can only be deployed as federal troops through the Governor.
U.S. District Judge Charles R. Breyer issued a restraining order on June 12, agreeing that President Trump had overstepped his authority. The Ninth Circuit ruling will place the decision back in Judge Breyer's hands.
Okay, but Can He Do That?
The Ninth Circuit appellate panel made it clear that President Trump's actions are not beyond judicial review, but they also ruled that Judge Breyer was in error with the breadth of his preliminary injunction. At stake is the question of whether a U.S. president can really send in federal troops in any situation they deem necessary.
The heart of President Trump's justification is 10 U.S.C. § 12406, which he insists gives him the authority he's claiming to possess. Under the code, the president can federalize the National Guard under any of the following three conditions:
- The United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation
- There is a rebellion or danger of a rebellion against the authority of the Government of the United States
- The President is unable to execute the laws of the United States with regular forces
The vagueness of what constitutes a rebellion makes the code open to interpretation. While protests are not rebellions, the argument is that the protests in LA included sufficient graffiti and property destruction to be labeled as a "rebellion" if you squint at it hard enough.
The code also specifies that such an order from the president must go through the state's Governor. The Ninth Circuit's decision to approve going through a National Guard general who "acted on the Governor's behalf."
Gov. Newsom and the state of California have several legal paths to choose from. Appealing the decision before an en banc Ninth Circuit is an option, as is petitioning the U.S. Supreme Court. They can also wait to see how Judge Breyer responds.
In the meantime, the troops continue to be stationed in the city. It is calm enough that Mayor Bass lifted all curfews several days ago and the "No Kings Protest" that occurred on June 14 was peaceful.
Related Resources
- Who Controls the National Guard? (FindLaw's Law and Daily Life)
- What Is the Unitary Executive Theory? (FindLaw's Law and Daily Life)
- Rioting and Inciting To Riot (FindLaw's Criminal Charges)
