Ninth Circuit sides with Trump: National Guard can stay in Los Angeles

SAN FRANCISCO - A three-judge panel in San Francisco on Thursday unanimously sided with President Donald Trump, allowing the California National Guard to stay in Los Angeles, over Gov. Gavin Newsom's objections that the president trampled on his sovereignty as governor of the state. 

Presidential deference

The 38-page decision by Ninth Circuit Court of Appeals judges, Mark Bennett, Eric Miller and Jennifer Sung, overturns a lower court ruling that favored Newsom's argument. The panel concluded that Trump was in his legal right to use his presidential power to federalize the National Guard. 

The judges wrote that while presidents don’t have unfettered power to seize control of a state’s troops, the Trump administration had presented enough evidence to show it had a defensible rationale for doing so, citing violent acts by protesters in Los Angeles, where some had thrown rocks, concrete blocks and Molotov cocktails in the streets, and vandalized federal property, earlier this month.

The court also disagreed with Newsom’s argument that the president’s decision to federalize members of the California National Guard under Title 10 is completely insulated from judicial review.

"Affording the President that deference, we 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 stated.

The ruling indefinitely blocks a previous order by U.S. District Court Judge Charles Breyer to put Gavin Newsom back in control of the National Guard. However, Breyer will still hear the case on Friday, although what will happen now wasn't immediately clear. 

"The court also said, when we review, we need to be very deferential, we need to understand that we really shouldn’t aggressively second guess the president, when it comes to things like whether he can execute federal law with the regular forces," Jessica Levinson, a Loyola Marymount University Law professor, told KTVU after the ruling.  "This is a win for the Trump administration, that they can go ahead and federalize the National Guard for now."

Trump hails the ruling

Trump hailed the news as a big victory. 

"BIG WIN in the Ninth Circuit Court of Appeals on the President’s core power to call in the National Guard!" Trump wrote on Turth Social. "The Judges obviously realized that Gavin Newscum is incompetent and ill prepared, but this is much bigger than Gavin, because all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done. This is a Great Decision for our Country, and we will continue to protect and defend Law abiding Americans. Congratulations to the Ninth Circuit, America is proud of you tonight!." 

Newsom vows to fight

California Attorney General Rob Bonta issued a statement in the wake of the ruling decrying the court's decision and vowed to continue the legal battle.

"While it is disappointing that our temporary restraining order has been stayed pending the federal government’s appeal, this case is far from over," Bonta said. "The Trump Administration far overreached its authority with its unprecedented and unlawful federalization of the California National Guard and deployment of military troops into our communities. As senior military leaders serving in administrations from JFK to Obama have affirmed, the use of the military on U.S. soil should be ‘rare, serious, and legally clear.’ That is not the case in Los Angeles where our state and local law enforcement officers responded effectively to isolated episodes of violence at otherwise peaceful protests and the President deliberately sought to create the very chaos and crises he claimed to be addressing. While the court did not provide immediate relief for Angelenos today, we remain confident in our arguments and will continue the fight." 

Newsom also vowed to keep fighting, though he wasn't specific.

"We will not let this authoritarian use of military soldiers against citizens go unchecked," he posted. 

California could choose to ask the full appeals court to rehear the matter, which is called en banc, or it could directly ask the Supreme Court to intervene.

The backstory:

Who are the judges

Bennett and Miller  are Trump appointees. Sung was appointed by Democratic President Joe Biden.

Breyer, who sided with Newsom and argued that Trump violated the use of Title 10, which is when the president can call in the Guard during a "rebellion," was appointed by Democratic President Bill Clinton.

University of California School of Law San Francisco professor David Levine said he's not sure what Breyer will do on Friday. The hearing is set for a preliminary injunction, but "we'll see what he thinks he can do after digesting the opinion last night." 

Levine said that technically, all the Ninth Circuit did was "tap the brakes" on Breyer's original temporary restraining order. 

LA protests

The legal drama stems from June 7, when Trump deployed the state National Guard without Newsom's permission to Los Angeles to protect federal property following a protest at a downtown detention center after federal immigration agents arrested dozens of immigrants without legal status across the city. 

In court, Trump's attorney, Brett Shumate, on Tuesday argued before the appellate court justices that the mob violence in LA was so great, that the Guard had to be called in to help the federal agents. 

Newsom countered that the presence of the Guard was actually causing the tensions and protests, and that the troops were not necessary and should instead be helping rake the forests to prevent wildfires. His attorney, Samuel Harbourt, countered that while some of the more rowdy protesters' actions were serious, local police have been making at least 1,000 arrests and using state authorities to "disperse crowds as necessary." 

The National Guard hasn’t been activated without a governor’s permission since 1965, when President Lyndon B. Johnson sent troops to protect a civil rights march in Alabama. 

Many expect the ruling in this case will have sweeping implications for Trump’s power to send soldiers into other American cities.

KTVU's Tori Gaines and Andrew Fortin-Caldera contributed to this report. 

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