“The fight doesn’t end here.” Gavin Newsom made that announcement on Thursday, soon after a federal appellate court ruled President Donald Trump retains control over the California National Guard. By Friday morning, the overturned district court judge repeated the mantra, but in subtler, more judicious terms designed to obscure his bias and his intent to halt the president’s use of the National Guard and Marines in Los Angeles. The apparent plan is now to find the president’s deployment violates the Posse Comitatus Act, which goes to show that judges bent on executing a coup by courts also have six ways to Sunday to rebel against the duly elected president.
After rioters attacked ICE agents and federal property in California, on June 7, 2025, President Trump federalized the California National Guard. Once under federal command, Secretary of Defense Pete Hegseth ordered thousands of National Guard troops to deploy to Los Angeles. Secretary Hegseth later also deployed some 700 active-duty U.S. Marines from Camp Pendleton to Los Angeles.
Within days of the president’s federalizing of the California National Guard, Governor Newsom filed a multi-count complaint in a San Francisco federal court. Then, at 11:00 a.m., on June 10, 2025, the governor asked the court to immediately (by 1:00 p.m.) grant him an ex parte temporary restraining order, barring the deployment of troops in Los Angeles and directing the president to return control of the National Guard to the governor. Presiding Judge Charlies Breyer instead provided the Trump administration 24 hours to respond to the motion and set a hearing for June 12, 2025, at 1:30 p.m.
Judge Breyer opened the June 12, 2025 hearing by noting he had refused to grant the requested injunction on an ex parte basis, with the Clinton appointee stressing the importance of hearing from both sides before ruling. However, Judge Breyer soon made clear his fist was firmly on Governor Newsom’s side of the scale, with the federal judge appropriating the language of the left and declaring we have no king in America.
It came as no surprise, then, to court listeners that by day’s end Judge Breyer had entered an injunction against President Trump, enjoining him “from deploying members of the California National Guard in Los Angeles,” and directing the Commander-in-Chief “to return control of the California National Guard to Governor Newsom.” The court stayed his order until noon on Friday, June 13, 2025.
The Trump administration immediately sought a stay of Judge Breyer’s injunction in the Ninth Circuit Court of Appeals — the federal circuit court that hears appeals from district courts in California, among other western states. Within hours, a three-judge panel of the federal appellate court entered an administrative stay of Judge Breyer’s order, keeping the president in charge of the National Guard. The Ninth Circuit then set an expedited briefing schedule and scheduled a hearing for Tuesday, June 17, 2025.
Last Tuesday, Trump appointees Judges Mark Bennette and Eric Miller, joined by Biden-appointee Judge Jennifer Sung, heard the parties’ argument concerning the propriety of the injunction. Two days later, in a unanimous opinion, the court held the Trump administration “made the required strong showing that they are likely to succeed on the merits of their appeal,” and stayed the lower court’s injunction against the president. That stay left the California National Guard under federal control and deployed in Los Angeles, as directed by Secretary Hegseth.
In concluding that Trump was likely to succeed on the merits of his appeal, the Ninth Circuit focused on Newsom’s claim that the president lacked authority under 10 U.S.C. § 12406 to federalize the California National Guard. That federal statute authorizes the president to federalize the National Guard of a state whenever, among other things, “the President is unable with the regular forces to execute the laws of the United States . . . ”
While Judge Breyer concluded that Trump had failed to establish that he was unable with regular forces to execute the laws of the United States, the Ninth Circuit rejected the lower court’s reasoning in two respects. First, the three-judge panel concluded that courts owe great deference to the president’s conclusion that regular forces are unable to execute federal law.
Hellbound and Down 