9th Circuit blocks path for Trump to again deploy National Guard without state approval

Sonja Sharp, Los Angeles Times on Oct 23, 2026

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President Donald Trump illegally usurped Gov. Gavin Newsom’s command of the California National Guard by ordering a surge of troops deployed into Los Angeles and across the state amid protests against the White House’s mass deportation program last year, the 9th Circuit Court of Appeals ruled Friday.

The 2-1 decision split the president’s own appointees to the court, with Judge Eric D. Miller of Seattle siding with Judge Jennifer Sung of Portland, Oregon, a Biden pick, and Judge Mark J. Bennett of Honolulu dissenting.

“The order exceeded the President’s statutory authority and encroached on Congress’s calling forth power, in violation of the constitutional separation of powers,” Sung wrote for the majority, calling Trump’s order “unconstitutional.”

he decision also appeared to foreclose what California Attorney General Rob Bonta called “the Trump administration’s transparent attempt” to preserve its right to call up California troops again under the same obscure statute — a novel legal maneuver administration lawyers said let the president seize command without invoking the far stronger Insurrection Act.

The 9th Circuit trio were among the first to weigh the law last June, after Trump federalized 4,000 National Guard troops in response to unrest over immigration enforcement in Los Angeles.

California sued. U.S. District Judge Charles R. Breyer quickly ruled to block the deployment. But Sung, Bennett and Miller stayed his order, finding that the California deployment could go forward under an obscure and virtually untested subsection of the law.

That decision set a “great level of deference” as the standard of review for deployments, meaning courts had very little power to test the president’s rationale for sending troops into American streets.

At the time, the decision represented one of the president’s most sweeping second-term victories: a plug-and-play legal mechanism to deploy troops against civilians in cities across the country.

In Portland that fall, another 9th Circuit panel stayed U.S. District Judge Karin Immergut’s order to stand down troops, using the first trio’s precedent.

The Portland decision — based in part on data the Department of Justice later admitted was false — prompted an extraordinary filing by Judge Jay Bybee, who all but pleaded with the court to rehear the case and interpret the law differently.

“There is no greater threat to the sovereignty of the states than an assertion of federal control over their domestic affairs,” Bybee wrote.

The issue quickly found its way to the Supreme Court, after a 7th Circuit panel found the president had provided “insufficient evidence” for deployment even under the 9th Circuit’s deference standard.

On Dec. 23, the justices adopted a celebrated Georgetown scholar’s academic reading of the statute, saying it allowed the president to commandeer National Guard troops only if the situation had already outmatched the standing army.

Federalized troops were ordered to leave Los Angeles in December.

On Friday, the 9th Circuit held that Trump’s claim that Los Angeles was in the grips of a rebellion last June “did not reflect a colorable assessment within a range of honest judgment.”

Using “the plain text of the statute,” and “dictionary definitions of the disputed term,” the majority found the president had not furnished evidence of “a violent, armed, organized, open and avowed uprising against the government as a whole” — nor anything close to it.

Instead, Justice Department lawyers had relied on subsidiary definitions of “rebellion” that the 9th Circuit warned would allow the president to call up troops to quell almost any resistance, including peaceful protests.

“Resistance that is not violent, armed, organized, and against the government as a whole generally does not require a military response,” Sung wrote.

“Because Defendants have failed to identify a source of authority that would allow the military to legally execute the laws in California, they have not carried their burden to show that the President had the authority to federalize California’s National Guard,” Sung wrote.