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Ninth Circuit Rules That Trump Can Federalize the National Guard During LA’s Riots … For Now – Twitchy

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June 20, 2025
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Dem Nanette Barragán Says LA Riots Would End if ICE Left so Illegal Aliens Could Keep Breaking the Law – Twitchy

Regular readers know that we have had riots in Los Angeles designed to disrupt the enforcement of immigration laws for around two weeks now. Trump federalized the National Gxuard and brought in the marines to protect federal property and personnel but notably not to stop the riots themselves. In the midst of all that, Gavin Newsom tried to get a temporary restraining order stopping Trump from doing that, and hoping that Judge Breyer would give him that order without the Trump administration even having a chance to defend themselves in court. We covered Judge Breyer refusing to do that, here, and setting a hearing the following Thursday. If you wanted a deep dive into the legal issues surrounding the case and a discussion of the Government’s Opposition to the motion for a temporary restraining order, go here. Then this author posted about the hearing, and our opinion that Breyer was likely to rule against the Government, here. Within minutes of that post, our prediction turned out to be true, but also a three-judge panel of the Ninth Circuit stepped in very and issued an administrative stay of that decision, which we talked about here.





As we noted in that last post, this three judge panel of the Ninth Circuit (made up of two Trump appointees and one Biden appointee) also set a hearing for basically the following Tuesday (last Tuesday as of this writing). You see, an administrative is just a placeholder to keep the status quo in place until the court has a chance to rule. But the question was whether or not a permanent stay was in order, which would allow Trump to continue to command the National Guard. In any case, the court has ruled on that question and it is a near-total win for Trump.

The Trump administration just about ran the tables with this. We won’t go into all the ins and outs of the law in this case, because we already did, but we will quote extensively from their summary:

We now grant the stay. Defendants have made the required strong showing that they are likely to succeed on the merits of their appeal. We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard under 10 U.S.C. § 12406 is completely insulated from judicial review. Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential. 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.’ Additionally, the Secretary of Defense’s transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to ‘issue all orders in the name of the Governor,’ CAL. MIL. & VET. CODE § 163—likely satisfied the statute’s procedural requirement that federalization orders be issued ‘through’ the Governor. And even if there were a procedural violation, that would not justify the scope of relief provided by the district court’s TRO. Our conclusion that it is likely that the President’s order federalizing members of the California National Guard was authorized under § 12406(3) also resolves the Tenth Amendment claim because the parties agree that the Tenth Amendment claim turns on the statutory claim.

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So, team Trump argued that his determination that ‘the President is unable with the regular forces to execute the laws of the United States’ justifying the federalization of the National Guard couldn’t be reviewed by the courts at all. The one (partial) victory Newsom notched in this opinion was that they said they wouldn’t say it was completely unreviewable, but they would defer heavily to Trump’s interpretation.

Further, while the statute required Trump to federalize the Guard ‘through’ the governor, they ruled that this was satisfied because California state law made Adjutant General of the California National Guard more or less the governor’s agent for purposes of the statute—and even if it didn’t, the order went too far anyway on this narrow procedural issue.

Digging deeper, the panel rejected the District Court’s interpretation of the statute as ‘as requiring total or near total interference’ with the President’s ability to enforce the law before Trump could federalize the National Guard, but they are a little mushy about how much interference is necessary. We will note that prior instances when the National Guard was federalized—particularly during that period where Democrats used violence to try to enforce racial discrimination and military force was necessary to stop them—wouldn’t have met the legal standard set by the lower court.

[Editor: Which time are you talking about?]

[Aaron: What do you mean?]

[Editor: You wrote ‘that period where Democrats used violence to try to enforce racial discrimination.’ I can think of several times when Democrats did that: Bleeding Kansas, the Civil War, the KKK type violence during Reconstruction and so on, all the way through the violent resistance to the Civil Rights Movement, including the murder of Martin Luther King, Jr. (a Republican).]





[Aaron: Oh, right. Democrats sure have used violence to try to get their way a lot, haven’t they? I meant in the 1950’s and 60’s when Democrats got violent in an effort to stop the Civil Rights Movement. I’ll fix that phrase to be more specific and I’ll be sure to remove this bracketed discussion. There is nothing more embarrassing as a writer than leaving bracketed comments in a published draft.]

Joking aside, to dig deeper on the procedural issue, they also rejected Newsom’s suggestion that he has essentially veto authority over Trump’s decision to federalize the Guard. And they noted that even if Trump didn’t quite follow the correct procedure, at most this just meant that the district court should have just ordered the Trump administration to correct that oversight—that is, follow the correct procedure. It shouldn’t have used that as a vehicle to take away Trump’s National Guard troops entirely.

So as a practical matter, at most, the Court should have ordered Trump to officially federalize the Guard ‘through’ Newsom himself, giving Trump something like twenty-four hours to comply. But Newsom would be required to carry out the order, and hand over the Guard to him, and the court probably would have ordered him to do so, or at least made it clear he had no choice.

There’s more to the opinion than what we just outlined—particularly the question of whether or not an appeal can be heard from the Temporary Restraining Order at all—but we think we covered the big topics.

Finally, we will note that while we had two Trump appointees and one Biden appointee on this panel, this decision was unanimous. Indeed the opinion is ‘per curiam’ which means that there is no official author of the opinion.





On to reactions:

For now, Trump will have command… unless the entire Ninth Circuit intervenes. The Ninth Circuit is the largest mid-level appellate court on the federal level. A little Googling tells us there are 29 active judges on it, and in order to handle cases more efficiently, they handle the vast majority of appeals by ‘panels’ of three judges like this, which are chosen at random on a case-by-case basis. But it is possible to move for the entire 29 judge court to get involved and that group is considerably less sympathetic to the Trump administration. Or alternatively Newsom could appeal to the United States Supreme Court, but Newsom’s chances are worse, there.

But even in the Ninth Circuit as a whole, we think Trump’s chances are good. Again, we cannot stress enough how much Judge Breyer went off the reservation in the case below. Most of the time the politics of the courts—which goes beyond partisan politics—is basically ‘let the President do whatever the frak he wants when it comes to the military.’ In the past the Courts have let the military ban yarmulkes and other religious headgear, and intern Japanese Americans because the military was involved. We don’t cite these examples to praise these decisions, but to point out how extreme that deference can be. 

This Court did essentially say that they might overrule the President if his or her determination that there was a need was ‘absurd or made in bad faith’ and we think that is wrong, too. But they still upheld Trump’s decision, finding that those factors aren’t present, here.





Exactly. Newsom wanted to make it possible for one state governor to veto the will of the President in enforcing laws written by Congress, effectively allowing one governor to dictate open borders to a country that voted overwhelmingly against it. Newsom claims that he was acting to protect democracy, but that is false on its face.

That is referring to this beta post on Twitter/X where he called his wife the First Partner of California:

For the love of… Just say First Lady, dude. Are you unsure if your wife is really a woman? Well, don’t ask the current Justice Jackson for clarification because she doesn’t know the meaning of that word.

And, of course, this also happened on Juneteenth. As you know, on Juneteenth, we celebrate the end of slavery, another labor system which exploited disproportionately dark skinned people and that Democrats used violence to defend.





We aren’t sure if there’s a typo or not, but we get the gist and he is right.

Finally:

Heh. Has anyone done a mental health check on him, lately?

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Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.

Help us hold these corrupt judges accountable for their unconstitutional rulings. Join Twitchy VIP and use promo code FIGHT to get 60% off your membership.





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