The 9th U.S. Circuit Court of Appeals decided Thursday to leave troops in Los Angeles in the hands of the Trump administration while California’s objections are litigated in federal court, finding the president had broad — though not “unreviewable” — authority to deploy the military in American cities.
“We disagree with Defendants’ primary argument that the President’s decision to federalize members of the California National Guard … is completely insulated from judicial review,” Judge Mark J. Bennett of Honolulu, a Trump appointee, wrote for the appellate panel. “Nonetheless, we are persuaded that, under long-standing precedent interpreting the statutory predecessor … our review of that decision must be highly deferential.”
California leaders vowed to fight back in federal court.
“This case is far from over,” Atty. Gen. Rob Bonta said in response to the ruling. “While the court did not provide immediate relief for Angelenos today, we remain confident in our arguments and will continue the fight.”
“We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens,” Gov. Gavin Newsom said.
Legal scholars said the decision was expected — particularly as the 9th Circuit has moved from the country’s most liberal to one of its most “balanced” since the start of Trump’s first term.
“It’s critically important for the people to understand just how much power Congress has given the president through these statutes,” said Eric Merriam, a professor of legal studies at Central Florida University and an appellate military judge.
“Judges for hundreds of years now have given extreme deference to the president in national security decisions, (including) use of the military,” Merriam added. “There is no other area of law where the president or executive gets that level of deference.”
The appellate panel sharply questioned both sides during Tuesday’s hearing, appearing to reject the federal government’s assertion that courts had no right to review the president’s actions, while also undercutting California’s claim that Trump had overstepped his authority in sending troops to L.A. to quell a “rebellion against the authority of the United States.”
“All three judges seemed skeptical of the arguments that each party was making in its most extreme form,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at New York University’s Brennan Center for Justice.
“I was impressed with the questions,” she went on. “I think they were fair questions, I think they were hard questions. I think the judges were wrestling with the right issues.”
The ruling Thursday appeared to return the issue to U.S. District Judge Charles R. Breyer.
Its timing — late in the evening on the federal Juneteenth holiday — was likely intended to give the lower court a chance to review the decision ahead of Friday’s planned hearing in San Francisco, where California sought to block Trump from using federalized soldiers to assist in immigration raids, court watchers said.
Unlike Breyer, whose temporary restraining order on June 12 would have returned control of the National Guard to California, the appellate court largely avoided the question of whether the facts on the ground in Los Angeles amounted to a “rebellion.”
Instead, the ruling focused on the limits of presidential power.
Bennett’s opinion directly refuted the argument — made by Assistant Atty. Gen. Brett Shumate in Tuesday’s hearing — that the decision to federalize National Guard troops was “unreviewable.”
“Defendants argue that this language precludes review,” the judge wrote. “(But Supreme Court precedent) does not compel us to accept the federal government’s position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.”
He also quoted at length from the 1932 Supreme Court decision in Sterling vs. Constantin, writing “
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