SAN FRANCISCO — On Tuesday, a federal appeals court appeared inclined to allow President Donald Trump to maintain control over the California National Guard, following their deployment due to protests in Los Angeles related to immigration raids.
Previously, a district court had ordered Trump to cede control of the National Guard back to Democratic Governor Gavin Newsom, who opposed their deployment. U.S. District Judge Charles Breyer criticized Trump’s deployment of the Guard as unlawful and an overstep of presidential authority. Nevertheless, the administration swiftly filed an appeal, leading a three-judge appellate panel to issue a temporary stay on Breyer’s order.
This week’s hearing focused on whether Breyer’s order should take effect while the legal battle proceeds. This convoluted case might eventually find its way to the Supreme Court. It’s notable as this represents the first instance since 1965 where a president has activated a state National Guard without the governor’s consent, a decision with potentially sweeping consequences for Trump’s ability to deploy troops in American cities.
The initial directive was implemented by Trump on June 7, citing the need to protect federal property in Los Angeles following a downtown protest. The protest erupted after federal immigration agents conducted citywide arrests of immigrants without legal status. According to Newsom, Trump’s actions only escalated tensions and the use of troops was unwarranted.
During the appeals court hearing in San Francisco, three judges, two appointed by Trump and one by President Joe Biden, reflected on the president’s broad authority granted under existing federal law. They emphasized judicial restraint in matters of executive decision-making. “If we were writing on a blank slate, I would tend to agree with you,” Judge Jennifer Sung, a Biden appointee, said to California’s attorney, Samuel Harbourt, citing a historical Supreme Court ruling supporting presidential discretion.
However, the judges expressed skepticism toward the Justice Department’s stance that Trump’s decision was beyond judicial review. Though the panel did not unveil their decision timeline, Judge Mark Bennett questioned the extent of judicial intervention regarding the president’s activation of the National Guard. “The statute says the president may call on federal service members and units of the Guard of any state in such numbers that he considers necessary,” federal government lawyer Brett Shumate argued, highlighting what he deemed a clear statutory mandate.
Shumate frequently referenced “mob violence” to describe the ongoing Los Angeles protests, despite the lifting of a downtown curfew by Mayor Karen Bass, citing a decline in vandalism and violence. “It is essential that this injunction be stayed, otherwise, lives and property will be at risk,” Shumate insisted.
Harbourt contended that Newsom was not informed prior to the Guard’s deployment and criticized the Trump administration for resorting to extreme measures without considering less drastic options. He stressed that overturning Breyer’s ruling would undermine the principles of state sovereignty, the legal review of executive actions, and citizens’ rights to political protest.
Breyer’s directive was limited to National Guard troops and excluded the Marines, who were also deployed to Los Angeles but had not yet been positioned on the streets when he made his decision. Newsom’s lawsuit claimed Trump’s actions risked escalating tensions, breached state sovereignty, and diverted resources essential for wildfire preparedness, labeling the federal intervention “illegal and immoral.”
Confident in the judicial system, Newsom asserted, “I’m confident that common sense will prevail here: The U.S. military belongs on the battlefield, not on American streets.”
Breyer condemned Trump’s misapplication of Title 10, which authorizes presidential deployment of the National Guard in cases of invasion, rebellion, or inability to enforce U.S. laws. Breyer concluded that these conditions were unmet, deeming the Los Angeles protests insufficient to warrant federal intervention. Highlighting citizens’ constitutional rights, he argued that the actions of a few should not nullify the First Amendment rights of many.
Activating the National Guard without a governor’s approval last occurred in 1965 when President Lyndon B. Johnson deployed troops to secure a civil rights march in Alabama.