Trump administration can keep control of California National Guard troops for now, appeals court rules

The Trump administration can maintain control of several thousand National Guard troops in California and continue to deploy them in Los Angeles, a federal appeals court ruled late Thursday, pausing a lower court ruling that determined President Donald Trump’s federalization of the guardsmen was unlawful.

The ruling by a three-judge panel on the 9th U.S. Circuit Court of Appeals keeps in place Trump’s directives authorizing the deployment of at least 4,000 California National Guard troops and several hundred Marines pending further litigation, even as state leaders cast the military presence as unnecessary and escalatory.

The appeals court will hold a hearing on the matter Tuesday.

Hours before the appeals court ruling, a federal judge temporarily halted the deployment in Los Angeles, writing Thursday evening that the federal government did not have the authority to nationalize California’s National Guard.

U.S. District Judge Charles Breyer issued the temporary restraining order after an hourlong hearing in a San Francisco federal court. It marked a significant setback for Trump, who in recent days increased the number of California National Guard troops under his command by thousands as he sought to flex his executive power and blunt volatile protests in Los Angeles triggered by Immigration and Customs Enforcement raids.

California Gov. Gavin Newsom, a Democrat, steadfastly opposed Trump’s decision to deploy the troops, arguing that the presence of militarized law enforcement would only intensify protests and that the administration did not take command of the National Guard members in accordance with federal law.

“The Department of Defense did not transmit this directive to the Office of the Governor, nor was it approved or ordered by the Governor of California,” as required by the law, Newsom wrote in a letter urging the administration to relinquish control of the troops.

A day after the letter was sent, California Attorney General Rob Bonta challenged the deployment in federal court, formalizing Newsom’s concern that the administration failed to properly follow the statute that permits the federalization of a state’s National Guard.

In his ruling, Breyer appeared to agree with that argument, delivering a decision broader than the state had sought.

Bonta had wanted to ensure that the guard members weren’t participating in civilian law and immigration enforcement, acts that they are typically federally prohibited to do. But Breyer determined that Trump exceeded his authority in federalizing the troops because he did not notify Newsom, as the statute cited by the administration requires.

During a hearing in San Francisco this afternoon, a lawyer for the federal government argued the administration had met the requirements of a federal statute that governs when the National Guard can be called into federal service. However, in his order Thursday evening, Breyer said the Trump administration had in his view met none of those requirements.

“His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution” Breyer wrote.

“He must therefore return control of the California National Guard to the Governor of the State of California forthwith,” the judge continued.

Newsom praised the ruling at an evening news conference, calling it “a big day for the Constitution of the United States” and “our democracy.”

“I hope it’s the beginning of a new day in this country where we push back against overreach,” Newsom said. “We push back against these authoritarian tendencies of a president that has pushed the boundaries, push the limit, but no longer can push this state around.”

The White House did not immediately respond to a request for comment.

Attorneys for the Justice Department framed Breyer’s ruling as an attack on Trump’s presidential powers.

“The district court has entered an unprecedented order enjoining the President from deploying National Guardsmen to protect federal officers from ongoing violent protests and attacks, and to protect federal property from further damage,” the attorneys wrote.

They added that the “order is an extraordinary intrusion on the President’s constitutional authority as Commander in Chief to call forth the National Guard as necessary to protect federal officials.”

“The district court concluded that the statutory conditions were not satisfied,” the Justice Department attorneys wrote. “But that sort of second-guessing of the Commander in Chief’s military judgments is a gross violation of the separation of powers. Nearly 200 years ago, the Supreme Court made clear that these judgment calls are for the President to make—not a Governor, and certainly not a federal court”

Breyer’s order does not apply to the deployment of 700 Marines to Los Angeles. In the hearing Thursday afternoon, he expressed skepticism that he was able to control their movements, because the governor of California does not have authority over the Marine Corps. “I don’t understand how I’m supposed to do anything with the Marines, to tell you the truth,” he said.