Appellate judges weigh Trump’s use of military for immigration protests

A three-judge panel appeared skeptical on Tuesday during a hearing of California Gov. Gavin Newsom’s argument that President Donald Trump violated the law when he deployed thousands of National Guard members to respond to protests and riots in Los Angeles County.

All three judges on the panel for the U.S. Court of Appeals for the Ninth Circuit grilled a state attorney over Newsom’s request for the court to restrict Trump’s use of the National Guard.

The judges conveyed uncertainty about whether the court even had the ability to review Newsom’s claims, citing a case from 1827 that found presidents have exclusive authority over the militia.

“Even if we were to agree with you that there is some limited role of judicial review, how can, with the facts here and the language in Martin v. Mott, how can that test be met here by the state to justify an injunction against the president’s actions?” Judge Mark Bennett, a Trump appointee, asked.

Judge Jennifer Sung, a Biden appointee, said the “problem” she saw with California attorney Samuel Harbourt’s arguments was that the 1827 decision “seemed to broadly hold that … Congress was essentially giving the president the authority, the exclusive authority, to determine whether the [need for military presence] existed.”

JUDGE MULLS TRUMP’S AUTHORITY OVER NATIONAL GUARD, WARNS US IS NOT ‘KING GEORGE’ MONARCHY

Protesters began gathering on the steps of Los Angeles City Hall early Tuesday afternoon after three days of anti-ICE riots in the city. (Peter D’Abrosca for Fox News Digital)

The panel is weighing whether to extend its temporary hold on a lower court order, issued by Clinton-appointed Judge Charles Breyer last week, that temporarily blocked Trump from using National Guard soldiers in parts of Los Angeles.

Trump and Secretary of Defense Pete Hegseth invoked a provision of Title 10 to deploy military forces in the county following spurts of riotous behavior and heavy protesting in response to immigration raids during the past ten days.

In court papers, Department of Justice attorneys said Trump and Hegseth were using the military strictly to protect Immigration and Customs Enforcement (ICE) personnel and federal buildings.

The law they invoked includes the condition that there be a rebellion or invasion or that federal authorities, in this case ICE officials, are unable to carry out their jobs. The law also includes the condition that the president go “through” a governor to federalize the National Guard.

DOJ attorneys said that language did not require Trump to obtain Newsom’s permission to deploy the National Guard, despite presidents typically only doing so with a governor’s consent. Instead, the law simply required that Trump notify Newsom, the attorneys said.

Newsom fiercely opposed Trump federalizing guard members, and attorneys for California argued in court filings that the decision exacerbated the unrest and led to exponentially more rioting incidents. They said that regardless of the severity of the rioting, it did not “remotely” meet the criteria required under the Title 10 provision.

TRUMP TELLS JUDGE HE DOES NOT NEED NEWSOM’S PERMISSION TO CRACK DOWN ON RIOTERS, DEPLOY NATIONAL GUARD

Anti-ICE rioters and police face-off in Los Angeles on Saturday, June 14, 2025. Demonstraions across the country are being teld today under that banner of No Kings. (Jamie Vera/Fox News)

“As the district court found based on the record evidence, the circumstances here do not remotely amount to a ‘rebellion or danger of a rebellion’ or a situation that renders the President ‘unable with the regular forces to execute the laws of the United States,’” the state attorneys wrote.

Harbourt said during Tuesday’s hearing that local and state law enforcement had made around 1,000 arrests related to protest activity.

Since June 7, Trump has federalized 4,000 National Guard members and enlisted 700 Marines to offer support in California as ICE officials carry out raids and arrest allegedly illegal immigrants, including dozens with criminal records.

GAVIN NEWSOM LAUNCHES SUBSTACK TO FIGHT ‘DISINFORMATION’

Left: California Gov. Gavin Newsom; Right: President Donald Trump (Getty Images)

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An ICE official said in an affidavit that National Guard members have been “essential” to providing extra support around the 300 N. Los Angeles Federal Building, which has been the sight of frequent protests and unrest since the immigration raids began.

“Prior to the National Guard’s deployment, rioters and protestors assaulted federal, state, and local law enforcement officers with rocks, fireworks, and other objects. They also damaged federal property by spray painting death threats to federal law enforcement officers,” the ICE official wrote.