An appeals court has temporarily returned control of California’s national guard to Donald Trump, just hours after a federal judge ruled the president’s use of the guards to suppress protests in Los Angeles was illegal and banned it.
The 9th US Circuit court of appeals order means Trump retains command of the guards for now and can continue to use them to respond to protests against his immigration crackdown. The court could later decide against his control.
It’s a temporary victory for Trump in back-and-forth court decisions on who should control the security force, an issue that has pitted California’s governor, Gavin Newsom, against the president and angered Democrats, who see the deployment as an abuse of power.
The three-judge panel that paused the ruling included two judges appointed by Trump in his first term. The other is a judge appointed by Joe Biden. The panel said it would hold a hearing on Tuesday to consider the merits of the order from District Judge Charles Breyer from earlier in the day.
Breyer ruled the Guard deployment was illegal and both violated the 10th amendment and exceeded Trump’s statutory authority. The order applied only to the National Guard troops and not Marines who were also deployed to the LA protests. The judge said he would not rule on the Marines because they were not out on the streets yet.
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.
Beryer’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, effectively 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.
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.”
The Associated Press contributed reporting.
