Ninth Circuit Stays Injunction Against Cal. Guard Federalization

In previous posts, I discussed California Governor Gavin Newsom’s suit against President Trump’s federalization of the National Guard to deal with the Los Angeles riots, the district court’s temporary restraining order, and the court of appeals’s immediate short-term administrative stay.

Yesterday, despite being a federal holiday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit stayed the district court’s TRO for the duration of the appeal. In circumstances such as this, the stay pending appeal may be the whole ball game. If order is restored and the federalization rescinded before the actual decision of the appeal, the appeal may very well be dismissed as moot.

The panel was not too worried about the point that I considered the weakest element of the President’s case, the requirement of 10 U.S.C. § 12406 that the orders be issued through the state governor.

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.” Cal. Mil. & Vet. Code § 160. The Adjutant General’s duties include “issu[ing] all orders in the name of the Governor.” Id. § 163.

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In sum, Defendants likely complied with § 12406’s procedural requirement because California’s Adjutant General exercised delegated authority under state law and issued the order in the Governor’s name. Even if Defendants failed to comply with § 12406’s procedural requirement, Governor Newsom had no power to veto or countermand the President’s order. Thus, Defendants are likely to prevail on this claim because the alleged procedural violation has no effect on President Trump’s authority under § 12406 and does not justify the current scope of the injunction imposed by the district court.

The court rejected President Trump’s argument that the court could not not decide this issue at all, but it applied “a deferential standard of review,” as courts generally do in military matters. The court need not agree that the situation calls for federalizing the Guard. It need only be within the “range of honest judgment.”

The panel held that the President is likely to prevail on the merits. Along with other factors such as the balance of potential harms, a stay of the TRO was justified.

The opinion is per curiam, meaning that it represents the views of the panel as a whole, with no judge identified as an individual author. The panel is Judges Bennett, Miller, and Sung. As of this writing, Pacer does not show a petition for rehearing en banc by the governor.

The case is Newsom v. Trump, U.S. Court of Appeals for the Ninth Circuit, No. 25-3727.