Newsom, et al. v. Trump, et al.Newsom, et al. v. Trump, et al.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAVIN NEWSOM, In his official capacity as Governor of the State of California; STATE OF CALIFORNIA,
Plaintiffs - Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; PETER HEGSETH, in his official capacity as Secretary of the Department of Defense; UNITED STATES DEPARTMENT OF DEFENSE,
Defendants - Appellants.
No. 25-3727
D.C. No. 3:25-cv-04870-CRB
ORDER
Charles R. Breyer, District Judge, Presiding
Argued and Submitted June 17, 2025
San Francisco, California
Filed June 19, 2025
NEWSOM V. TRUMP 2
Before: Mark J. Bennett, Eric D. Miller, and Jennifer Sung, Circuit Judges.
SUMMARY*
10 U.S.C. § 12406
The panel stayed pending appeal the district court’s temporary restraining order (TRO) (1) enjoining the President of the United States, the Secretary of Defense, and the Department of Defense from deploying members of the California National Guard in Los Angeles; and (2) directing defendants to return control of the California National Guard to California.
In response to disturbances in Los Angeles stemming from federal enforcement of immigration laws, the President on June 7, 2025, invoked
The State of California and Governor Newsom sued defendants in federal court, and upon plaintiffs’ application, the district court granted a TRO, primarily because the
NEWSOM V. TRUMP 3
district court concluded that plaintiffs were likely to succeed on their claim that the President’s order was ultra vires because none of the predicates to federalization required under
The panel held that it had jurisdiction under the All Writs Act to grant a stay of the TRO pending appeal. Moreover, because the TRO possessed the qualities of a preliminary injunction, it was reviewable under
In granting a stay pending appeal, the panel held that defendants made the required strong showing that they were likely to succeed on the merits of their appeal. Although the panel disagreed with defendants’ primary argument that the President’s decision to federalize members of the Califоrnia National Guard under
Affording the President that deference, the panel concluded that it was likely that the President lawfully exercised his statutory authority under
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defending federal property by throwing “concrete chunks, bottles of liquid, and other objects,” and used “large rolling commercial dumpsters as a battering ram” in an attempt to breach the parking garage of a federal building. Plaintiffs’ own submissions stated that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by defendants, these activities significantly impeded the ability of federal officers to execute the laws. Under a highly deferential standard of review, defendants presented facts that permitted the panel to conclude that the President had a colorable basis for invoking
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”—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.
The panel’s conclusion that it was likely that the President’s order federalizing members of the California National Guard was authorized under
NEWSOM V. TRUMP 5
COUNSEL
Brett A. Shumate (argued), Assistant Attorney General; Eric D. McArthur, Deputy Assistant Attorney General; Sharon Swingle, Anna O. Mohan and Mark R. Freeman, Attorneys; Christopher D. Edelman, Trial Attorney; United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Mack E. Jenkins, Matthew J. Craig, Susan Har, Hecker Fink LLP, Los Angeles, California; Beau Tremitiere and Kristy
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Parker, Protect Democracy United, Washington, D.C.; for Amici Curiae Former U.S. Army and Navy Secretaries and Retired Four-Star Admirals and Generals.
Hydee F. Soto, Valerie L. Flores, Michael Dundas, and Shaun D. Jacobs, Attorneys, Los Angeles City Attorney Office, Los Angeles, California; Norman L. Eisen, Stephen A. Jonas, Joshua G. Kolb, and Diamond Brown, Democracy Defenders Fund, Washington, D.C.; for Amicus Curiae City of Los Angeles.
Yvonne R. Mere, David Chiu, Mollie M. Lee, Sara J. Eisenberg, Nancy E. Harris, and Karun A. Tilak, Attorneys, San Francisco City Attorney Office, San Francisco, California; Alexandra Kliger, Jonathan Miller, and Jenny Ma, Public Rights Project, Oakland, California; Cody S. Harris, Sophie Hood, Anjali Srinivasan, Ian Kanig, Cara R. Meyer, and Eliane Holmund, Keker, Van Nest & Peters LLP, San Francisco, California; Yibin Shen, City Attorney, Alameda, California; Lauren Keefe, City Attorney, Albuquerque, New Mexico; Ebony M. Thompson, City Solicitor, Baltimore City Department of Law, Baltimore, Maryland; Megan B. Bayer, City Solicitor, Cambridge, Massachusetts; Mary B. Richardson-Lowry, Corporation Counsel, City of Chicago, Chicago, Illinois; Carlos Pabellon, Corporation Counsel; David R. Gault, Deputy Corporation Counsel, County of Dane Wisconsin, Madison, Wisconsin; Alexandra B. Ruggie, Corporation Counsel, City of Evanston, Evanston, Illinois; Leesa Manion, Prosecuting Attorney for Martin Luther King, Jr. County, Seattle, Washington; Kristyn Anderson, City Attorney, Minneapolis, Minnesota; John P. Markovs, Montgomery County Attorney, Rockville, Maryland; Patricia King, Corporation Counsel, Office of New Haven Corporation Counsel, New Haven, Connecticut; Krysia Kubiak, City Solicitor and Chief
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Legal Officer, City of Pittsburgh, Pittsburgh, Pennsylvania; Susana A. Wood, City Attorney, Sacramento, California; John D. Nibbelin, County Attorney for the County of San Mateo, Redwood City, California; Tonry
Patricio A. Marquez, Emily Nelson, Andrew Hughes, Alexia Diorio, Assistant Attorneys General; Nicholas W. Brown, Washington Attorney General; Office of the Attorney General, Seattle, Washington; Rose E. Gibson, Assistant Attorney General; Ian R. Liston, Director of Impact Litigation; Kathleen Jennings, Delaware Attorney General; Office of the Delaware Attorney General, Wilmington, Delaware; Kristin K. Mayes, Arizona Attorney General, Office of the Arizona Attorney General, Phoenix, Arizona; Philip J. Weiser, Colorado Attorney General, Office of the Colorado Attorney General, Denver, Colorado; William Tong, Connecticut Attorney General, Office of the Connecticut Attorney General, Hartford, Connecticut; Anne E. Lopez, Hawai‘i Attorney General, Hawai‘i Office of the Attorney General, Honolulu, Hawai‘i; Kwame Raoul, Illinois Attorney General, Office of the Illinois Attorney General, Chicago, Illinois; Aaron M. Frey, Maine Attorney General, Office of the Maine Attorney General, Augusta, Maine; Anthony G. Brown, Maryland Attorney General, Office of the Maryland Attorney General, Baltimore, Maryland; Dana Nessel, Michigan Attorney General, Office of the Michigan Attorney General, Lansing, Michigan; Keith
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Ellison, Minnesota Attorney General, Office of the Minnesota Attorney General, St. Paul, Minnesota; Aaron D. Ford, Nevada Attorney General, Office of the Nevada Attorney General, Carson City, Nevada; Matthew J. Platkin, New Jersey Attorney General, Office of the New Jersey Attorney General, Trenton, New Jersey; Letitia James, New York Attorney General, Office of New York Attorney General, New York, New York; Jeff Jacksоn, North Carolina Attorney General, Office of the North Carolina, Raleigh, North Carolina; Dan Rayfield, Oregon Attorney General, Office of Oregon Attorney General, Salem, Oregon; Peter F. Neronha, Rhode Island Attorney General, Office of Rhode Island Attorney General, Providence, Rhode Island; Charity R. Clark, Vermont Attorney General, Office of the Vermont Attorney General, Montpelier, Vermont; Joshua L. Kaul, Wisconsin Attorney General, Office of the Wisconsin Attorney General, Madison, Wisconsin; Justin Whitten, Attorney for Governor Kelly, Office of the Governor of Kansas, Topeka, Kansas; for Amici Curiae Washington, Delaware, Arizona, Colorado, Connecticut, Hawai‘i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin, and the Office of the Governor of Kansas.
Brandon V. Stracener Sr. and David A. Carrillo, University of California, Berkeley School of Law, Berkeley, California, for Amicus Curiae California Constitution Scholars.
Andrew G. Watters, Redwood City, California, for Amicus Curiae Blue Eagle Coalition.
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PER CURIAM:
In
The State of California and its Governor, Gavin Newsom, sued the President, the Secretary of Defense, and the Department of Defense in federal court. Plaintiffs alleged that Defendants’ actions were ultra vires and violated the Tenth Amendment to the United States Constitution. They also alleged that the Secretary of Defense and the Department of Defense violated the Administrative Procedure Act (APA).
Plaintiffs applied for a temporary restraining order (TRO), and, after a hearing, the district court issued a TRO enjoining Defendants “from deploying members of the California National Guard in Los Angeles” and directing Defendants “to return control of the California National Guard to Governor Newsom.” The district court issued the TRO primarily because it concluded that Plaintiffs are likely to succeed on their claim that the President’s order federalizing members of the California National Guard is ultra vires because none of the predicates to federalization required under
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National Guard members, if validly federalized, may be deployed to protect federal personnel and property. The district court determined that Plaintiffs presented no evidence at the TRO hearing that National Guard members were engaged in any other activities, and Plaintiffs do not contest that determination.
Defendants immediately appealed the TRO and filed an emergency motion to stay the TRO pending appeal. We issued an administrative stay of the district court’s order pending our adjudication of Defendants’ emergency motion for a stay.
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
NEWSOM V. TRUMP 11
TRO. Our conclusion that it is likely that the President’s order federalizing members of the California National Guard was authorized under
We also conclude that the other stay factors—irreparable harm to Defendants, injury to Plaintiffs, and the public interest—weigh in Defendants’ favor. Thus, we grant the motion for a stay pending appeal.
I. BACKGROUND AND PROCEDURAL HISTORY
On June 6, 2025, a group of protesters tried to prevent Immigration and Customs Enforcement (ICE) officials from operating in Los Angeles by throwing objects at ICE vehicles. Later that evening, protesters gathered at ICE’s Enforcement and Removal Operаtions (ERO) building in downtown Los Angeles. Protesters “pinned down” several Federal Protective Service (FPS) officers and threw “concrete chunks, bottles of liquid, and other objects” at the officers. The protesters used “large rolling commercial dumpsters as a battering ram to breach the parking garage gate and damage[] federal property.” The Los Angeles Police Department arrived on the scene about an hour after being called by federal officers. The protesters eventually dispersed at law enforcement’s direction, but the federal building had been heavily vandalized.
The next day, on June 7, protesters continued to interfere with federal enforcement operations by a Homeland Security Investigations Office in Paramount, California, and continued to damage federal property. In a confrontation that lasted over seven hours, the protesters blocked traffic and used shopping carts to barricade the street. Some attacked ERO and Customs and Border Patrol (CBP) officers
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by “box[ing] in” the officers and “throwing mortar-style fireworks with multiple explosions” at them. Other protesters “engage[d] in dangerous behavior such as throwing rocks and other objects, including a Molotov Cocktail at deputies,” “burning a vehicle,” and “vandalizing property.” One ERO officer was trapped in her law enforcement vehicle while protesters surrounded it, violently pounded and shook it, and threw stones at it. One CBP officer suffered a shattered wrist caused by a thrown object. Protesters also damaged the perimeter fence of a federal building and three government vehicles.
In response to these incidents, the President signed a memorandum on June 7, 2025, calling into federal service at least 2,000 members of the National Guard pursuant to his authority under
Later that evening, the Secretary of Defense sent a memorandum to California’s Adjutant General to effectuate the President’s memorandum. This memorandum was titled, “Memorandum for Adjutant General of the California National Guard Through: The Governor of California,” and it enclosed a copy of the President’s memorandum. The Secretary’s memorandum called into service 2,000 California National Guard members for 60 days. The
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Adjutant General forwarded both memoranda to Governor Newsom.
Protests against federal officers continued into the following days. For example, during the night of June 8, protesters in downtown Los Angeles “set[] off commercial-grade
On June 9, in response to these events, the Secretary issued a second memorandum, calling into service an additional 2,000 members of the California National Guard for 60 days. That day, Plaintiffs filed suit against Defendants. The complaint asserts ultra vires, Tenth Amendment, and APA claims, all primarily based on the allegation that Defendants unlawfully called into federal service members of the California National Guard. The complaint seeks declaratory and injunctive relief.
On June 10, Plaintiffs moved for a TRO. Plaintiffs asserted that they were “likely to suffer several types of irreparable harm in the absence of temporary relief,” highlighting as a “stand[] out” harm “the very high risk of substantial civil unrest as a direct result” of Defendants’
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deployment of the National Guard. Plaintiffs argued that the use of the National Guard “serves only to spread fear and heighten tensions in Los Angeles” and would “further de-stabilize the community.” Plaintiffs also urged that the deployment of the National Guard “diverts necessary state resources” because National Guard members help fight forest fires, stop drug trafficking, and protect against cyber threats.
Defendants opposed the motion, and the district court held a hearing on June 12. The district court granted the TRO that same day. Responding to Defendants’ argument that the President’s decision to federalize members of the California National Guard was not justiciable, the district court concluded that neither the political question doctrine nor
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on the Posse Comitatus Act, see
The district court then found that Plaintiffs had suffered irreparable injury and that the public interest and balance of the equities tipped in their favor. The district court concluded that while “Defendants no doubt have an ‘interest in protecting federal agents and property’” (quoting Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 838 (9th Cir. 2020)), “[f]ederal agents and property may actually well be served by de-militarization and a concurring de-escalation of the situation.” The district court concluded that the deployment of the National Guard “inflames tensions with protesters” and “deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions.” The district court’s order temporarily enjoined—with no end date—Defendants “from deploying members of the California National Guard in Los Angeles” and directed Defendants “to return control of the California National Guard to Governor Newsom.” The district court stayed its order until noon on June 13, 2025, and set a preliminary injunction hearing for June 20, 2025.
Defendants immediatеly filed a notice of appeal and moved for an emergency stay pending appeal. As noted, we
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issued an administrative stay of the TRO. We held oral argument on June 17, 2025.3
II. APPELLATE JURISDICTION
Ordinarily, we lack jurisdiction over the appeal of a TRO. See E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th Cir. 2018). At this time, however, we are not considering an appeal of a TRO, but rather, Defendants’ motion for a stay of the TRO pending appeal. We have jurisdiction to grant such a stay under the All Writs Act,
Nonetheless, Plaintiffs argue that we should not grant the stay because there are “serious questions” as to whether we would have jurisdiction to review the district court’s issuance of a TRO. Although Plaintiffs’ argument goes to the merits of Defendants’ motion for a stay, not our jurisdiction, we address it here.
As noted, we generally lack jurisdiction over the appeal of a TRO. But when a TRO “possesses the qualities of a preliminary injunction,” it is reviewable under
In assessing whether a TRO is best construed as an appealable preliminary injunction, we evaluate whether “an adversary hearing has been held, and [whether] the court’s basis for issuing the order [was] strongly challenged.” E. Bay, 932 F.3d at 762 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002)).
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“Likewise, where the duration of the order exceeds the ordinary duration for TROs as set forth in the Federal Rules of Civil Procedure, classification as a TRO is unlikely.” Serv. Emps., 598 F.3d at 1067. A TRO may also be appealable when it
The TRO here “possesses the qualities of a preliminary injunction.” Serv. Emps., 598 F.3d at 1067. The district court issued the TRO after an adversarial hearing at which Defendants challenged the basis for the order. That hearing came after the parties filed extensive written materials challenging the district court’s basis for the order. Plaintiffs moved for a TRO, Defendants filed an opposition, and Plaintiffs filed a reply. Moreover, while the district court has scheduled a hearing for June 20, 2025, to determine whether it should issue a preliminary injunction, the TRO does not automatically expire on that date, so it could be in force for more than 14 days.
The TRO also has the practical effect of a preliminary injunction. It enjoined Defendants from deploying members of the National Guard in Los Angeles and directed return of control of the National Guard to Plaintiffs. President Trump determined that he could not “ensure the protection and safety of Federal personnel and property” without using the National Guard. If Defendants are not allowed to appeal the TRO, they “would be effectively foreclosed from pursuing further interlocutory relief” because the National Guard could not bе used to protect federal property and agents. Env’t Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980).
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On these facts, we conclude that the district court’s order is effectively a preliminary injunction. Consequently, issues of appellate jurisdiction do not affect the likelihood of Defendants’ success on their appeal from the TRO.
III. STANDARD OF REVIEW
We review Defendants’ request for a stay pending appeal using the “traditional stay factors.” Nken v. Holder, 556 U.S. 418, 426 (2009). Thus, we consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical.” Id. at 434.
IV. DISCUSSION
A. Likelihood of Success
In determining whether Defendants have made a strong showing that they are likely to succeed on the merits of their appeal of the TRO, we address only the issues that the district court resolved in granting the TRO. Defendants argue the district court erred in concluding that Plaintiffs’ ultra vires claim is justiciable. Defendants also argue that the district court erred in concluding that Plaintiffs were likely to succeed on the merits of their claim that the President’s order federalizing California National Guard members was not authorized under
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Consequently, the parties’ disputes about how federal forces are being deployed are not before us.
a. Political Question Doctrine
Defendants argue that the claim challenging the President’s order federalizing members of the National Guard under
“In general, the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)). There is “a narrow exception to that rule, known as the ‘political question’ doctrine.” Id. at 195. “The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210 (1962).
Because the political question doctrine is grounded in the constitutional separation of powers, it has traditionally been limited to constitutional cases. See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the judgment) (“[T]he Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution.”). It has not been available in statutory cases. Applying it in statutory cases would “systematically favor” the President over Congress by ignoring the limitations that the latter placed on the former’s authority, threatening the very separation of powers that the doctrine is meant to protect. Id. at 857. Thus, to determine whether the political question doctrine precludes judicial review, we must first determine whether
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the President’s authority to federalize National Guard members is constitutional or statutory. We conclude it is statutory.
The Constitution provides that “[t]he President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.”
At various points in this litigation, Defendants have referred to the President’s “inherent constitutional authority.” But Defendants represented to the district court that they are not arguing that President Trump exercised “some other independent Article II authority”—rather, as Defendants acknowledged, “[t]he only authority the president invoked was this particular statute,” that is,
“take[] measures incompatible with the expressed or implied will of Congress” reflected in that
Consequently, the political question doctrine does not bar judicial review.
b. Statutory Scope of Review
The question we must answer is: To what extent has Congress, in
“As with any question of statutory interpretation, our analysis begins with the plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). “Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006).
The statute provides:
Whenever—
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
Defendants argue that this language precludes review. They rely on Dalton v. Specter, 511 U.S. 462 (1994), for the proposition that whenever a statute “commits decisionmaking to the discretion of the President, judicial review of the President’s decision is not available.” Id. at 477. In Dalton, the Act in question, concerning the closure of military bases, “authorized unfettered discretion by the
President to either approve or disapprove the package of base closures” proposed by an independent commission. Sierra Club v. Trump, 929 F.3d 670, 696 (9th Cir. 2019); see Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, § 2903(e)(1), 104 Stat. 1808, 1812
Unlike in Dalton, the statute here enumerates three predicate conditions for the President’s decision to call forth the National Guard. As the district court explained, the text of the statute does not make the President the sole judge of whether one or more of the statutory preconditions exist. See
However, that leaves the question whether we owe that determination deference, and if so, how much? Again, that is a question of statutory interpretation. And if we were considering the text of
But we are not writing on a blank slate. The history of Congress’s statutory delegations of its calling forth power,
and a line of cases beginning with Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), interpreting those delegations, strongly suggest that our review of the President’s determinations in this context is especially deferential.
Congress first delegated its constitutional calling forth power to the President in the Militia Act of 1792, see ch. 28, §§ 1–2, 1 Stat. 264, 264 (repealed 1795). Congress renewed that delegation in the Militia Act of 1795, see ch. 36, § 1, 1 Stat. 424, 424. The 1795 Act was a precursor to the Militia Act of 1903, see Pub. L. No. 57-33, §§ 1, 4, 32 Stat. 775, 775–76, which is a precursor to
And like
The Supreme Court interpreted the Militia Act of 1795 in Martin, which arose out of President Madison’s decision to call the New York militia into federal service during the War of 1812. See id. at 28. Jacob Mott, a New York militiaman, refused to turn up for service. He was court-martialed and fined, and the State seized his property to satisfy the debt. Mott then brought an action for replevin in
state court, arguing that the seizure was illegal because President Madison’s order federalizing the militia was invalid. See id.
The Supreme Court rejected that argument. The Court began by explaining that the Constitution gave the calling forth power to Congress, but Congress “confided” that power to the President when the “exigency” of an invasion “has arisen.” id. at 29. The Court first recognized that the delegated power was, “in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion.” Id. The Court then framed the issue presented as:
If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?
Id. at 29–30. The Court answered that question by stating that “the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Id. at 30. In reaching that conclusion, the Court relied in part on the nature of a foreign invasion and the need for military subordinates to follow orders. See id. In particular, because “[t]he power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union,” the Court reasoned that
“every delay, and every obstacle to an efficient and immediate compliance, necessarily tend[s] to jeopard[ize] the public interests.” Id.
The Court then explained that “the language of the act of 1795” supported its “conclusion drawn from the nature of the [delegated] power itself.” Id. at 31. The Court followed the “sound rule of construction” thаt “[w]henever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, . . . the statute constitutes him the sole and exclusive judge of the existence of those facts.” Id. at 31–32 (emphasis added). The Court further explained that although the power delegated to the President under the Militia Act is “susceptible of abuse,” the “remedy for this” is political: “in addition to the high qualities which the Executive must be presumed to possess, of public virtue, and honest devotion to the public interests,” it is “the frequency of elections, and the watchfulness of the representatives of the nation” that “carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.” Id. at 32.
Plaintiffs correctly note that some of the Martin Court’s reasoning addressed factual circumstances of that case that are not present here: particularly the Court’s consideration of the nature of a foreign invasion and concerns about militiamen disobeying orders. See id. at 29 (explaining that the 1795 Act considers an “invasion from any foreign nation or Indian tribe”); id. at 30 (“A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object.”). Still, for the following reasons, we conclude that, under Martin and its progeny, we must give a great level of deference to the President’s determination that a predicate condition exists.
First, much of the Court’s reasoning in Martin appears equally applicable regardless of the case’s particular facts. See, e.g., id. at 30 (explaining that the President’s power to command the militia “in times of insurrection and invasion, are . . . natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the confederacy” (emphasis added) (quoting THE FEDERALIST NO. 29 (Alexander Hamilton))).
Second, if Congress had disagreed with the Martin Court’s interpretation of the 1795 Act, it could have amended the statute to provide for greater judicial review of the existence of a predicate condition.
Third, the Supreme Court has not understood Martin to be a narrow decision addressing only the military chain of command. In Luther v. Borden, 48 U.S. (7 How.) 1 (1849), the Supreme Court evaluated an action for trespass that
turned on which of two factions was the legitimate government of Rhode Island. Id. at 34–35. During the dispute, President Tyler concluded that there was enough unrest to invoke the promise of federal protection against “domestic Violence” in the Guarantee Clause. See Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE L.J. 149, 172 (2004);
That view of Martin has remained the settled understanding of the Supreme Court and among legal scholars. See Zivotofsky, 566 U.S. at 205–06, 206 n.1 (Sotomayor, J., concurring in part and concurring in the judgment) (citing Martin for the proposition that “courts are particularly ill suited to intervening in exigent disputes necessitating unusual need for ‘attributing finality to the action of the political departments’” (quoting Coleman v. Miller, 307 U.S. 433, 454 (1939))); Vladeck, supra, at 172 (“Per the Mott Court, then, the 1795 Militia Act granted broad power to the Executive to determine, for himself,
when circumstances necessitated the calling forth of the militia, and such a determination was not subject to judicial review.”); Elizabeth Goitein & Joseph Nunn, An Army Turned Inward: Reforming the Insurrection Act to Guard Against Abuse, 13 J. NAT’L SEC. L. & POL’Y 355, 394 (2023) (citing Martin and explaining that “[i]n cases involving the Insurrection Act’s precursor laws [including the Militia Act of 1795], the Supreme Court held that courts could not review the president’s determination that an exigency existed that required the deployment of military troops”).
Fourth, we recognize that Martin concerned a question that directly implicated foreign policy, while this case implicates the President’s domestic use of military fоrce, and that as a general rule, we afford the President greater latitude in the former context. Cf. Doe, 957 F.3d at 1066–67 (explaining, for example, that the President’s “power is more circumscribed when he addresses a purely domestic economic issue”). However,
California emphasizes that Martin is nearly 200 years old, and that it is in some tension with more recent decisions about the reviewability of executive determinations—even determinations about questions such as the existence of an invasion. See J.G.G., 145 S. Ct. at 1006 (“[W]e have held that an individual subject to detention and removal under [the Alien Enemies Act] is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act . . . .” (quoting Ludecke, 335 U.S. at 163)); Kucana v. Holder, 558 U.S. 233, 251 (2010) (“When a statute is ‘reasonably susceptiblе to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.’” (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)))). But Martin’s continuing viability is not for us to decide. The Supreme Court has admonished that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005).
All that said, Martin 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. In Martin, the Court addressed the argument that “the power confided to the President is a limited power” that “can be exercised only in the cases pointed out in the statute,” and the Court explained that “[w]hen the President exercises an
authority confided to him by law, the presumption is that it is exercised in pursuance of law.” Id. at 32–33. As the Court noted in Martin, a “public officer is presumed to act in obedience to his duty” only “until the contrary is shown.” Id. at 33. Moreover, discussing Martin, the Supreme Court has observed that “[t]he nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with
At this preliminary stage of the litigation, we need not further specify the precise standard that governs our review.
c. Application
With those principles in mind, we consider whether the President exceeded the limits of his statutory grant of authority under
laws of the United States.”
The district court interpreted
[T]he statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws. . . . The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here.
But as Defendants correctly argue, “
inappropriate so long as any continued execution of the laws is feasible.
On the other hand, we do not think that any minimal interference with the execution of laws is, by itself, enough to justify invoking
Under a highly deferential standard of review, Defendants have presented facts to allow us to conclude that the President had a colorable basis for invoking
used “large rolling commercial dumpsters as a battering ram” in an attempt to breach the parking garage of a federal building. Plaintiffs’ own submissions state that some protesters threw objects, including Molotov cocktails, and vandalized property. According to the declarations submitted by Defendants, those activities significantly impeded the ability of federal officers to execute the laws.
Affording appropriate deference to the President’s determination, we conclude that he likely acted within his authority in federalizing the National Guard under
2. Procedural Requirement of § 12406
Under
Defendants argue that they complied with the procedural requirement because (1) the President called Governor Newsom about the situation in Los Angeles on June 6; and (2) the Secretary of Defense sent the President’s memorandum to California’s Adjutant General, along with the Secretary’s memorandum that contained “Through: The Governor of California” in its title, and the Adjutant General forwarded both memoranda to Governor Newsom. Defendants also argue that even if they erred as a technical matter, any procedural error cannot justify the district court’s injunction because the President is not legally required to obtain the consent of the Governor, or to consult with him, before calling the National Guard into federal service.
Defendants’ actions likely met the procedural requirement because the federalization order was issued through an agent of the Governor in the Governor’s name. Under California law, the Adjutant General “is chief of staff to the Governor, subordinate only to the Governor and is the commander of all state military forces.”
Even if the statute contemplated strict adherence to a process that did not allow for delegation, the President’s failure to issue the federalization order directly “through” the Governor of California does not limit his otherwise lawful authority to call up the National Guard. See Dolan, 546 U.S. at 486 (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”).
First, the text of
Similarly, Plaintiffs’ argument that the text requires, “[a]t a minimum,” that the Governor be “consulted about an order” is not supported by the language of
Second, the purpose and context of
In any event, even if Defendants failed to comply with the statute’s procedural requirement, such failure would not justify the injunctive relief imposed by the district court. Assuming arguendo that Plaintiffs were likely to prevail on their claim that Defendants violated the statute’s procedural requirement, the proper remedy would be injunctive relief tailored to Defendants’ failure to issue the order through the Governor—not an injunction prohibiting the President from exercising his lawful authority to call up the National Guard. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32–33 (2008) (explaining that injunctive relief must be tailored to the alleged violation). At most, such tailored relief would be an injunction directing the President to send the relevant memoranda directly to the Governor.
In sum, Defendants likely complied with
failed to comply with
B. Remaining Stay Factors
In addition to the merits, we consider three other factors in assessing a motion for a stay: “whether the applicant will be irreparably injured absent a stay”; “whether issuance of the stay will substantially injure the other parties interested in the proceeding”; and “where the public interest lies.” Nken, 556 U.S. at 426 (quoting Hilton, 481 U.S. at 776). The last two factors “merge when the Government is the opposing party.” Id. at 435.
Both irreparable harm and the public interest weigh in favor of Defendants, who have an uncontested interest in the protection of federal agents and property and the faithful execution of law. See Index Newspapers, 977 F.3d at 838. The undisputed facts demonstrate that before the deployment of the National Guard, protesters “pinned down” several federal officers and threw “concrete chunks, bottles
of liquid, and other objects” at the officers. Protesters also damaged federal buildings and caused the closure of at least one federal building. And a federal van was attacked by protesters who smashed in the van’s windows. The federal government’s interest in preventing incidents like these is significant. See United States v. Bader, 698 F.2d 553, 555 (1st Cir. 1983) (“It is well established that the need to safeguard the normal functioning of public facilities is a ‘substantial government interest’ . . . .”); United States v. Shiel, 611 F.2d 526, 528 (4th Cir. 1979) (“The legitimacy
Plaintiffs argue that the public interest weighs against issuing a stay because permitting the use of the National Guard here would upset the constitutional balance of power between federal and state government. While we recognize that significant interests of Plaintiffs are implicated here, Plaintiffs’ argument is, in essence, a merits argument that we have already resolved. The Constitution assigns the power to “call[] forth the Militia” to Congress, and Congress has delegated portions of that power to the President.
Expressing concern about what they describe as “defendants’ nearly limitless conception of
enforcement officials at the local, state, and federal level all remain available and are doing that work.” We emphasize, however, that our decision addresses only the facts before us. And although we hold that the President likely has authority to federalize the National Guard, nothing in our decision addresses the nature of the activities in which the federalized National Guard may engage. Before the district court, Plaintiffs argued that certain uses of the National Guard would violate the Posse Comitatus Act,
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. Additionally, at least with respect to the issues presented here, Plaintiffs’ concerns have more bearing on the question of whether the President should have federalized the California National Guard, not whether he had the authority to do so under
603 U.S. 43, 72 (2024) (“In these circumstances, [Plaintiffs] cannot rely on ‘the predictable effect of Government action on the decisions of third parties’; rather, [they] can only ‘speculat[e] about the decisions of third parties.’” (third alteration in original) (quoting Dep’t of Com. v. New York, 588 U.S. 752, 768 (2019)))). And we do not know what emergencies may occur in California while the
V. CONCLUSION
For the reasons above, we GRANT Defendants’ motion for a stay pending appeal.