Three federal appeals court judges have ruled that Donald Trump can continue to be in charge of the California National Guard over Gavin Newsom. However, with a preliminary injunction hearing set for Friday morning in San Francisco before the lower court judge who first handed command of the Guard back to the Governor earlier this month, POTUS rule may be short-lived.
Still, leaning in hard again and again to “a question of statutory interpretation.,” the two Trump appointed judges and one Joe Biden appointed judge of the 9th Circuit Court of Appeals were unanimous that POTUS had the right under a fairly obscure statute to federalize the Golden State National Guard on June 7 with or without Newsom’s consent in response to protests over a flood of ICE raids in and around LA on June 6. “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 § 12406(3),” wrote Judges Mark Bennett, Eric Miller and Jennifer Sung late Thursday, after hearing arguments from both sides on June 17.
“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,” the trio wrote Thursday. ” Nonetheless, we are persuaded that, under longstanding precedent interpreting the statutory predecessor to § 12406, our review of that decision must be highly deferential.”
“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.”
It should be noted that lawyers from Trump’s DOJ bluntly told the judges at the end of that June 17 hearing that if they ruled against the administration, the feds were going to try to take the matter to the Supreme Court.
(L-R) Donald Trump, Gavin Newsom Credit: Getty
Trading increasingly hardcore barbs in the press and on social media the past two weeks, neither Trump nor Newsom had anything to say about the appeals court ruling tonight when contacted by Deadline.
Lawyers for both sides will be facing off again in front of Judge Charles Breyer for that preliminary injunction, which could see Newsom back in charge of the Guard again. Judge Breyer is the same judge who granted the Governor and California’s Attorney General that TRO back on June 12, until the Appeals Court hit the brakes on it with an administrative stay a few hours later.
Gov. Newsom has made a point of cautioning again and again that the method by which Trump took near unprecedented control of the California Guard actually applies nationwide and could easily be used in other states if the Blue state targeting White House feel a level of civil unrest has been reached.
The unrest on the streets of downtown LA seem to have quelled this week even as ICE raids continued at Home Depots and elsewhere in the City of Angles force on this Juneteenth holiday. In that context, the judges today referenced the Federalist Papers and insisted “we are not writing on a blank slate,” with their decision to reject Newsom’s fleetingly successful temporary restraining order request and siding with Trump and Defense Secretary Pete Hegseth.
After the massive No Kings demonstrations of June 14, federal buildings downtown — where many of the undocumented immigrants abducted by ICE and DHS are being held in basements and bleak conditions — are still surrounded by some of the heavily armed 4,000 Guard troops Trump put on the streets. Around 700 U.S. Marines were also deployed by Sec. Hegseth. Those Marines are not a part of this litigation.
As the court battle has raged on, Trump in typical fashion has threatened to withhold much needed disaster aid to California in vengeance for his authority being challenged by longtime foe Newsom. For his own part, the Governor has taken swings online, accusing Trump over diverting valuable resources from the state just as wildfire season begins in California.
Ted Johnson contributed to this report
