President Trump called up a modest number of California National Guardsmen to protect federal property and personnel during the Los Angeles riots. Governor Gavin Newsom brought a lawsuit alleging that Trump’s action was illegal. That case was initially heard by a Democratic Party judge in San Francisco, Charles Breyer, who ruled in Newsom’s favor and granted a temporary restraining order against Trump. The administration promptly appealed to the 9th Circuit Court of Appeals, which granted an administrative stay, maintaining the status quo (i.e., the Guard remained deployed) pending a hearing.
Yesterday, following oral argument and extensive briefing, a three-judge panel of the 9th Circuit ruled in Trump’s favor. You can read the opinion, which is lengthy and thorough, here. The administration called up the Guard pursuant to 10 U.S.C. § 12406, and the appellate court held that Trump’s action properly fell within the authority of that law:
[W]e conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.”
The court recited, and properly accorded weight to, unchallenged evidence of damage to federal property, danger to federal employees, and the forced closure of at least one federal building.
Newsom also argued that the administration’s calling up of the Guard was improper because § 12406 says the President’s “[o]rders . . . shall be issued through the governors of the States.” The court held that this doesn’t mean Gavin Newsom has a veto over the president’s deployment of the Guard:
Defendants’ actions likely met the procedural requirement because the federalization order was issued through an agent of the Governor in the Governor’s name. Under California law, the Adjutant General “is chief of staff to the Governor, subordinate only to the Governor and is the commander of all state military forces.” CAL. MIL. & VET. CODE § 160. The Adjutant General’s duties include “issu[ing] all orders in the name of the Governor.” Id. § 163. Plaintiffs do not dispute that California’s Adjutant General received the memoranda from the Secretary of Defense, relinquished command to the federal military accordingly, and forwarded the memoranda to Governor Newsom. Although Governor Newsom did not personally issue the order relinquishing state command, § 12406 requires that the President’s order be issued through the Governor, not directly by the Governor.
In any event, that procedural provision “does not limit his otherwise lawful authority
to call up the National Guard.”
The court thus granted the administration’s motion for a stay of Judge Breyer’s order pending further proceedings. A motion hearing had been scheduled before Judge Breyer for today, and I assume it will go forward. However, given the appellate court’s ruling that Trump is likely to prevail on the merits–the opinion actually resolves that issue–it should be all over but the shouting.
The position Newsom asserted in this case was weak. I assume he brought the action not on account of any legal merit, but to continue positioning himself for the 2028 Democratic presidential nomination as a bitter foe of President Trump.
