Robert B. Hubbell: “In rapid succession on Thursday evening, the following occurred in California’s lawsuit challenging the legality of Trump’s federalization of the California National Guard for deployment in Los Angeles:
- US District Judge Bryer granted California’s motion for a temporary restraining order, finding that Trump violated the statutory conditions for federalizing the National Guard. See Order Granting Plaintiffs’ Application For Temporary Restraining Order.
- The Ninth Circuit Court of Appeals granted an administrative stay of Judge Bryer’s order. Order Granting Administrative Stay.
- The Ninth Circuit set a hearing on June 17, 2025, before Judges Bennett, Sung, and Miller.
The opinion by Judge Bryer should be upheld by the Ninth Circuit and the Supreme Court. The Ninth Circuit panel includes two Trump appointees (Bennett and Miller) and one Biden appointee (Sung). Judge Miller was a law clerk for Justice Clarence Thomas. However, a quick scan of notable decisions by the judges suggests that California may receive a fair, non-partisan hearing before the Ninth Circuit panel. The opinion by Judge Bryer is exceptionally strong. By examining the definition of the term “rebellion” as understood at the time the relevant statute (10 U.S. Code § 12406) was enacted, Judge Bryer concludes that there was no “rebellion” in Los Angeles that justified federalizing the California National Guard. Moreover, Judge Bryer found that Trump and Hegseth violated the procedural requirement of Section 12406 by ignoring the provision that orders federalizing national guard troops “shall be issued through the governors of the States.” Here, Trump and Hegseth circumvented Governor Newsom, who undoubtedly would have refused to issue the order to transfer command of the California National Guard to the US military. If that had happened, it is not clear how the situation would have been resolved. But as Judge Bryer noted, Governor Newsom was denied the opportunity to object to the order to federalize the troops. Judge Bryer’s decision is indisputably correct. It may face an uphill battle before two Trump appointees on the three-judge panel in the Ninth Circuit. Moreover, my gut tells me that the reactionary majority on the Supreme Court will (wrongly) conclude that the president’s decision that a “rebellion” exists in Los Angeles is non-reviewable. The Supreme Court may also dismiss the procedural violation of circumventing the Governor of California…”…
