Appeals court blocks Newsom's bid to reclaim control of National Guard from Trump

A federal appeals court has indefinitely blocked an effort by California Gov. Gavin Newsom to reclaim control of the National Guard troops President Donald Trump deployed to Los Angeles following unrest related to immigration enforcement.

The three-judge panel of the San Francisco-based 9th Circuit Court of Appeals ruled unanimously that Trump appeared to have acted within his authority when he took control of 4,000 California National Guard troops under a law that has never been invoked without the consent of a state governor.

Despite a debate over the level of violence accompanying the protests, the judges — two appointed by Trump and one by President Joe Biden — concluded that the law gives Trump enormous latitude to determine that the protests and related violence were interfering with execution of federal law. The judges said there are limits to the president’s ability to call up the Guard, but there was enough evidence of civil unrest and danger to federal officials to justify Trump’s actions.

The ruling indefinitely sets aside a decision by U.S. District Judge Charles Breyer, who last week issued a temporary restraining order against Trump’s deployment of the Guard. Breyer is scheduled to hold another hearing in the case on Friday to consider Newsom’s request for a longer-term block of both the Guard deployment and Trump’s subsequent deployment of 700 Marines.

The three judges on the panel were Trump appointees Mark Bennett and Eric Miller and Biden appointee Jennifer Sung. All three appeared skeptical of Newsom’s position during oral arguments on Tuesday. Their Thursday night order was issued on a “per curiam” basis, which means no judge was identified as the author of the opinion.

Newsom, a Democrat, could ask a larger, 11-judge panel of the appeals court to take up the issue or seek emergency relief from the Supreme Court.

Despite ultimately ruling for Trump, all three judges flatly rejected his administration’s claim that the courts had no role in reviewing his call-up of the military to Los Angeles.

Had Trump’s call-up been “obviously absurd or made in bad faith,” they said, courts would clearly have a role in assessing it. However, the appeals court said a line of legal precedents dating to the early 19th century indicated that the court’s review of Trump’s decision should be “especially deferential” and that the president’s orders should be upheld if they reflect “a colorable assessment of the facts and law within a ‘range of honest judgment.’”

Newsom and his attorneys argued that Trump’s involvement of the National Guard was likely to fuel more anger from protesters and inflame an already tense situation on the streets of L.A.

But the appeals judges said those concerns were too remote to entitle the state to an order reversing Trump’s action.

“California’s concerns about escalation and interference with local law enforcement, at present, are too speculative. We do not know whether future protests will grow due to the deployment of the National Guard,” the court wrote. “And we do not know what emergencies may occur in California while the National Guard is deployed.”

There are signs that the protests and altercations with authorities have actually diminished in the days since the deployment. After imposing a curfew in downtown L.A last week, Mayor Karen Bass eased the curfew Monday and lifted it on Tuesday.

The 9th Circuit judges also concluded that a technical aspect of the law — a requirement that Trump issue his order to call up the Guard “through” Newsom — was not violated, even though the order was delivered to Newsom’s subordinate. Even if it were a violation, they added, it wouldn’t justify Breyer’s ruling to rescind the order altogether.

The appeals court panel had put a temporary hold on Breyer’s ruling shortly after he issued it — an administrative measure to give the panel time to hear arguments. The decision Thursday grants the Trump administration’s request to keep the hold in place as litigation proceeds. While it’s not a final ruling on the legality of Trump’s deployment order, by the time those issues are resolved by another panel of the appeals court, the Guard deployment could be over and the dispute could be moot.