A federal appeals court panel has sided with the Trump administration in litigation over President Donald Trump’s takeover of the California National Guard and deployment of troops in Los Angeles. The question before the U.S. Court of Appeals for the 9th Circuit was whether it would halt a trial judge’s temporary restraining order against the administration.
It will, a three-judge appellate panel said Thursday night, in a unanimous decision that keeps the Guard under federal control while litigation continues.
While the panel rejected the administration’s main argument that Trump’s decision to federalize members of the state Guard is unreviewable by courts, it said that it still had to give the president great deference. And with that deference in mind, it’s likely that Trump lawfully federalized the Guard, the panel said. It keyed in on a legal provision that lets presidents do so when “the President is unable with the regular forces to execute the laws of the United States.”
The unsigned, 38-page “per curiam” opinion came from two Trump appointees and a Biden appointee. California could try to appeal the ruling further to a larger appellate panel or to the Supreme Court. The trial judge who issued the restraining order, U.S. District Judge Charles Breyer, is set to hold a hearing Friday on whether to issue a longer-term preliminary injunction, so the case’s overall trajectory could become clearer at the hearing.
Breyer had issued the restraining order on Thursday, June 12. The brother of retired Supreme Court Justice Stephen Breyer deemed Trump’s actions illegal and said he had to return control of the state Guard to the governor. But the administration quickly appealed to the 9th Circuit, where the panel quickly issued an “administrative stay,” temporarily halting Breyer’s order. It held a hearing earlier this week, on Tuesday, to consider whether to issue a longer-term pause of the order, which it did in Thursday’s ruling siding with Trump. California officials have criticized Trump’s unprecedented action, in which — for the first time in the nation’s history — he invoked the law at issue to federalize a state’s National Guard units over its governor’s objection. The administration argued that it’s necessary to keep Breyer’s order paused “to prevent unprecedented judicial interference with a military order issued by the President as Commander in Chief.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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