A three-judge panel of the U.S. Court of Appeals of the Ninth Circuit released a unanimous opinion upholding President Donald Trump’s federalization of the California National Guard, and the media is portraying this as a win for the president over California Gov. Gavin Newsom.
It was, but it’s also a win for the public safety of the residents of Los Angeles, for local and federal law enforcement, and for a civilized society—a win against lawlessness, mob violence, and the reckless politics of a governor intent on ignoring the mayhem caused by violent agitators and his own weak actions.
It almost seems as if Newsom is living in some alternate reality. Faced with multiple videos and extensive news coverage of looting, arson, and attacks on law enforcement officers and federal buildings, Newsom was apparently more interested in putting up a public political fight against Trump than in actually dealing with the chaos, havoc, and disorder occurring in Los Angeles.
What other conclusion is possible? His support for obstruction of federal immigration officers is reminiscent of the obstruction of enforcement by federal officers of civil rights laws by Southern governors in the 1950s and 1960s.
This really was a simple issue.
The National Guard is basically the equivalent of the state militias when we first became a nation, and it’s normally under the control of the governor of a state. But as the Ninth Circuit panel outlined, federal law (10 U.S.C. § 12406) authorizes the president to “call into Federal service members and units of the National Guard of any State” under three specific conditions.
The president can federalize the National Guard and take control if we are invaded, if there is a rebellion or danger of rebellion, or if he “is unable with the regular forces to execute the laws of the United States.”
Trump acted under that third condition when he called up the California National Guard for 60 days in a June 7 memorandum. And despite Newsom’s frivolous claims to the contrary, what was happening in Los Angeles obviously met that condition.
As the opinion points out, Immigration and Customs Enforcement officials, their vehicles, and the ICE building and federal courthouse in downtown Los Angeles, were being attacked with “concrete chunks, bottles of liquid, and other objects,” with “mortar-style fireworks with multiple explosions,” rocks, and with Molotov cocktails. Streets were being barricaded by protesters, blocking traffic, burning vehicles, and vandalizing property and numerous buildings.
The National Guard was directed to “temporarily protect ICE and other United States Government personnel who are performing Federal functions, including enforcement of Federal law, and to protect Federal property.”
Newsom filed suit and obtained an injunction from liberal district court judge Charles Breyer—brother of former Supreme Court Justice Stephen Breyer—who substituted his judgment for that of the president as to whether federalization was “justified” by the anarchy in the streets of the city. Breyer denied the Guard was needed to restore order, and said, unbelievably, that deployment of the troops “inflames tensions with protesters.”
Even if that were true, so what? Whether lawful federal action inflames the passions of scofflaws is legally irrelevant.
Breyer also claimed that allowing the Guard to be used to quell the anarchy in Los Angeles would “deprive” the state of the use of the Guard “to fight fires, combat the fentanyl trade, and perform other critical functions.”
That claim is laughable given Newsom’s failures in the horrendous L.A. fires and his nonuse of the Guard to “combat the fentanyl trade.”
In any event, that is a policy question and has no “bearing on the question” of whether the president has “the authority” to federalize the Guard under the statute, said the appeals court.
As the Ninth Circuit panel concluded in throwing out Breyer’s injunction, the president’s decision is reviewable by the judiciary. However, the president is extended a “highly deferential standard of review” and in this matter, the facts presented were sufficient for the court to “conclude that the President had a colorable basis for invoking” his authority under the statute. Those facts included “protesters’ interference with the ability of federal officers to execute the laws” and the attacks on federal officers and federal buildings.
The court also dismissed Newsom’s claim that the president did not meet the procedural requirement in the statute that the president’s order “be issued through the governors of the states.” Not only did Trump call Newsom, but his order was sent through the Secretary of Defense to the commanding general of the California National Guard, who then gave it to the governor.
This satisfied the procedural requirement since Trump’s federalization order “was issued through an agent [the Adjutant General of the Guard] of the Governor in the Governor’s name.” The statute only requires that the “President’s order be issued through the Governor, not directly by the Governor.”
Most importantly, the text of the federal law “does not give governors any veto power over the President’s federalization decision.” California’s claim, that the governor has to at least be “consulted about an order,” is also not supported by the plain text.
In essence, Newsom lost on every single claim that he made. It’s too bad he spent so much time on this lawsuit instead of trying to cooperate with the president in trying to restore order to Tinseltown, whose tinsel was being burned, looted, and vandalized while Newsom pontificated in the public square.
Like any losing party before a federal appeals court, Newsom has the option to ask that the entire Ninth Circuit review the case, or he can file a petition for certiorari with the U.S. Supreme Court and hope that they take up his case. Either move keeps his case “alive” for the time being.
As a legal matter, this case is a loser for him. But actually winning may not have been the real reason he sued Trump in the first place. This may be more about building his political bona fides with his political party for 2028.