- Trump likely acted within authority, says US appeals court.
- Newsom can challenge National Guard use under other laws.
- “President is not king and is not above law,” says California governor.
A United States appeals court let Donald Trump retain control on Thursday of California’s National Guard while the state’s Democratic governor proceeds with a lawsuit challenging the Republican president’s use of the troops to quell protests in Los Angeles.
Trump’s decision to send troops into Los Angeles prompted a national debate about the use of the military on US soil and inflamed political tension in the country’s second most-populous city.
On Thursday, a three-judge panel of the San Francisco-based 9th US Circuit Court of Appeals extended its pause on US District Judge Charles Breyer’s June 12 ruling that Trump had unlawfully called the National Guard into federal service.
Trump probably acted within his authority, the panel said, adding that his administration probably complied with the requirement to coordinate with Governor Gavin Newsom, and even if it did not, he had no authority to veto Trump’s directive.
“And although we hold that the president likely has authority to federalise the National Guard, nothing in our decision addresses the nature of the activities in which the federalised National Guard may engage,” it wrote in its opinion.
Newsom could still challenge the use of the National Guard and US Marines under other laws, including the bar on using troops in domestic law enforcement, it added.
The governor could raise those issues at a court hearing on Friday in front of Breyer, it said.
In a post on X after the decision, Newsom vowed to pursue his challenge.
“The president is not a king and is not above the law,” he said. “We will press forward with our challenge to President Trump’s authoritarian use of U.s. military soldiers against our citizens.”
Trump hailed the decision in a post on Truth Social.
“This is a great decision for our country and we will continue to protect and defend law-abiding Americans,” he said.
“This is much bigger than Gavin, because all over the United States, if our cities, and our people, need protection, we are the ones to give it to them should state and local police be unable, for whatever reason, to get the job done.”
Breyer’s ruling was issued in a lawsuit against Trump’s action brought by Newsom.
Breyer ruled that Trump violated a US law governing a president’s ability to take control of a state’s National Guard by failing to coordinate with the governor.
It also found that the conditions set out under the statute to allow this move, such as a rebellion against federal authority, did not exist.
Breyer ordered Trump to return control of California’s National Guard to Newsom. Hours after Breyer acted, the 9th Circuit panel had put the judge’s move on hold temporarily. Amid protests and turmoil in Los Angeles over Trump’s immigration raids, the president on June 7 took control of California’s National Guard and deployed 4,000 troops against Newsom’s wishes.
Trump also ordered 700 US Marines to the city after sending in the National Guard. Breyer has not yet ruled on the legality of the Marine Corps mobilisation.
At a court hearing on Tuesday on whether to extend the pause on Breyer’s decision, members of the 9th Circuit panel questioned lawyers for California and the Trump administration on what role, if any, courts should have in reviewing Trump’s authority to deploy the troops.
The law sets out three conditions by which a president can federalise state National Guard forces, including an invasion, a “rebellion or danger of a rebellion” against the government or a situation in which the US government is unable with regular forces to execute the country’s laws.
The appeals court said the final condition had probably been met because protesters hurled items at immigration authorities’ vehicles, used trash dumpster as battering rams, threw Molotov cocktails and vandalised property, frustrating law enforcement.
The Justice Department has said once the president determines that an emergency exists that warrants the use of the National Guard, no court or state governor can review that decision. The appeals court rejected that argument.
The protests in Los Angeles ran for more than a week before they ebbed, leading Los Angeles Mayor Karen Bass to lift a curfew she had imposed.
In its June 9 lawsuit California said Trump’s deployment of the National Guard and the Marines violated the state’s sovereignty and U.S. laws that forbid federal troops from participating in civilian law enforcement.
The Trump administration has denied that troops are engaging in law enforcement, saying they are instead protecting federal buildings and personnel, including US Immigration and Customs Enforcement officers.
The 9th Circuit panel is comprised of two judges appointed by Trump during his first term and one appointee of Democratic former President Joe Biden.
