A federal appeals court on Thursday night temporarily returned control of California’s national guard to Donald Trump hours after a judge ruled the president’s use of the guard to suppress protests in Los Angeles was illegal.
The decision by the US court of appeals for the ninth circuit paused a temporary restraining order against Trump issued by US district judge Charles Breyer until at least an emergency hearing scheduled for 17 June.
Breyer ruled that Trump’s move to federalize the California national guard was illegal and ordered the guard to be returned to California’s governor, Gavin Newsom, paving the way for a legal battle destined to reach the US supreme court.
The stay meant Trump earned a reprieve on a testing day that also saw a sitting US senator, Alex Padilla, manhandled to the ground by federal agents after interrupting a news conference held by the homeland security secretary, Kristi Noem.
In issuing a temporary restraining order against Trump, Breyer found the president had failed to show there was a “rebellion” in Los Angeles that required him to federalize the guard and failed to comply with the procedural steps to notify the governor.
“His actions were illegal – both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States constitution. He must therefore return control of the California National Guard to the Governor,” Breyer wrote.
The request for the injunction is part of a lawsuit filed by the state of California challenging Trump’s move to call up more than 4,000 national guard troops and about 700 active-duty marines based in Twentynine Palms, California, over Newsom’s objections.
Breyer’s decision came after a hearing in federal district court in San Francisco where the justice department argued Trump had the sole and unreviewable power to decide whether there was a “rebellion” that needed federal intervention.
Breyer rejected both arguments in his sweeping 36-page opinion, in effect rebuking the justice department for trying to suggest the conditions to take control of the guard had been met as long as Trump had decided himself that was the case.
“The president’s discretion in what to do next does not mean that the president can unilaterally and without judicial review declare that a vacancy exists in order to fill it. That is classic ipse dixit,” Breyer wrote, adding that the definition of rebellion had clearly not been met.
Breyer was also skeptical of the justice department’s contention that Trump had followed the procedural step of ordering the guard “through” the governor by only directly notifying the adjutant general of the California national guard, to whom Newsom had delegated authority.
“Regardless of whether Defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California’s National Guard, they did not issue their orders through him,” Breyer wrote.
The temporary restraining order did not touch on Trump and his defense secretary, Pete Hegseth, moving to deploy the marines, in large part because the justice department told the judge they were only being used to protect federal buildings and personnel.
Using the military for protective purposes, Breyer suggested at the hearing, would not be a violation of the Posse Comitatus Act, a 19th-century law prohibiting the use of troops to engage in law enforcement activities on domestic soil.
Trump has been suggesting the idea of deploying troops against Americans since his first term, when some Black Lives Matter protests in the summer of 2020 turned violent. He opted against doing so at the time, but has since expressed regret to advisers that he did not punish them more aggressively.
Notably, during a campaign rally in 2023, Trump vowed to respond more forcefully if elected to a second term. “You’re supposed to not be involved in that, you just have to be asked by the governor or the mayor to come in,” he said of the president’s usual role in deciding whether to send in the military. “The next time, I’m not waiting.”
