Ninth Circuit Rules Unanimously Against Newsom: Trump Still Controls National Guard

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled unanimously Thursday that President Donald Trump can federalize the California National Guard, rejecting Gov. Gavin Newsom’s claims.

Trump federalized the Guard earlier this month to mobilize them against riots in Los Angeles. Newsom and fellow Democrats, who had failed to contain the violence, claimed the president was acting “illegally.”

In a 38-page opinion, the judges — two appointees of President Trump, and one of President Joe Biden — held that the president is likely to prevail on the merits of the case, and extended a stay of the district court’s temporary restraining order (TRO) against the administration.

While the judges concluded that Trump’s power over the National Guard was not unreviewable by the courts, they also concluded, based on precedent, that they had to defer to his judgment. They also noted that the main objection raised by Newsom — namely, that Trump had not consulted with the governor’s office — was invalid, because Trump fulfilled his duty simply by informing the governor. Even if Newsom were right, they ruled, that would not invalidate Trump’s authority.

The court held:

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.
We also conclude that the other stay factors—irreparable harm to Defendants, injury to Plaintiffs, and the public interest—weigh in Defendants’ favor.

…

Even if Defendants failed to comply with § 12406’s procedural requirement, Governor Newsom had no power to veto or countermand the President’s order. Thus, Defendants are likely to prevail on this claim because the alleged procedural violation has no effect on President Trump’s authority under § 12406 and does not justify the current scope of the injunction imposed by the district court.

…

Plaintiffs also urge that the public interest is in their favor because the “continued presence of National Guard members” in Los Angeles “risks worsening, not improving, tensions on the ground” and the federalization of the National Guard “impairs the Guard’s ability to perform critical functions for the State,” including support for fighting forest fires and combatting drug trafficking. These concerns are counterbalanced by the undisputed fact that federal property has been damaged and federal employees have been injured, and the evidence presented in the TRO hearing showed that the federalized National Guard members were engaged only in protecting federal personnel and property.

Newsom has continued to claim that Trump’s federalization of the National Guard was “illegal.” Pending appeal to the full bench of the Ninth Circuit, or to the U.S. Supreme Court, he may have to revise that claim.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of Trump 2.0: The Most Dramatic ‘First 100 Days’ in Presidential History, available for Amazon Kindle. He is also the author of The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency, now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.