A judge in the appeals court has put a pause on some of the key issues concerning California, particularly with President Trump’s decision to withdraw National Guard forces from Los Angeles.
On Tuesday, a panel of three judges from the U.S. Ninth Circuit Court of Appeals in San Francisco engaged in discussions around the Trump administration’s request to stay a lower court ruling that returned control of the California State Guard to Governor Gavin Newsom, a Democrat.
The judges offered little indication of where they stood, but many of their inquiries seemed to lean against California’s position.
At one moment, Judge Mark Bennett, a Trump appointee, questioned, “Where does it say that orders issued through the governor need his consent and consultation?”
This legal challenge surfaced when Trump sought to federalize the California State Guard earlier this month amid riots in Los Angeles. The relevant legal text suggests that such orders should involve the governor’s input.
Samuel Herbert, an assistant superintendent in California, argued that the wording implies that Newsom’s involvement is necessary, or at least, should be recognized. “Their stance suggests they could complete the whole process without even consulting the governor and just put his name on the top of the document,” he noted regarding the Trump administration’s approach.
Bennett seemed to imply that there might be technical issues at play while considering the phrase “through the governor” as a straightforward requirement.
Judge Eric Miller, also a Trump appointee, remarked, “This really seems like a detour to impose consultation requirements,” referring to the legislative language.
The disputed law outlines three potential conditions for federalizing forces: aggression, rebellion, or an inability to enforce U.S. law. Under those circumstances, the president can call up the National Guard and federal forces as deemed necessary.
Throughout the oral arguments, the judges pointed to examples of other legal texts suggesting that presidential authority over state militias requires explicit approval for specific actions.
The third judge, Jennifer Song, appointed by Biden, mostly remained silent during the discussions but directed her questions towards California’s arguments.
She expressed some agreement with California’s perspective, saying, “If we were starting from scratch, I might agree with you, but you’re facing an issue because [Martin v.] Mott seems to relate to a very similar phrase.”
This 1827 Supreme Court case involved New York militias who declined service during the War of 1812, concluding that the president has the right to call upon state militias.
Throughout the proceedings, Song brought up Mott multiple times, indicating similarities between the case and the language invoked by Trump.
“I think the plaintiffs are interpreting the law in a rather dangerous way,” argued Brett Schmate, recently confirmed as the director of the Department of Justice’s civil division.
He further stated, “Reading the law, Governor Newsom did not comply with the president’s orders and expected someone to come to consult with him before any orders were issued.”
He emphasized that the statute clearly states it must be done “through the governor.”
Newsom and California Attorney General Rob Bonta voiced their support for Trump’s legal challenge to federalize the state’s National Guard earlier this month.
U.S. District Judge Charles Breyer, from San Francisco, had aligned with California, granting the governor control over about 4,000 National Guard members mobilized by Trump.
The Trump administration quickly sought a stay from this ruling, pausing Breyer’s orders to examine the matter further.
This intervention marked the first time since the 1992 Rodney King riots that a president had deployed the National Guard to address unrest in Los Angeles, and it was also the first time a president has federalized a state’s National Guard since President Lyndon Johnson did so in 1965 to protect civil rights marchers in Alabama.
