A federal appeals court in San Francisco has for now paused an order by a judge who directed President Trump on Thursday to relinquish control of California National Guard troops.
In an extraordinary ruling, the judge, Charles Breyer of the Federal District Court in San Francisco, held that Mr. Trump had illegally seized control of up to 4,000 National Guard troops and directed him to return them to the command of Gov. Gavin Newsom of California. The president had already deployed hundreds of Guard troops in the streets of Los Angeles to protect immigration agents and federal buildings from protesters.
But the Trump administration immediately appealed the ruling and asked the appeals court to keep it from taking effect while the litigation continues. In a late-night brief, the Justice Department said Judge Breyer’s “second-guessing of the commander in chief’s military judgments is a gross violation of the separation of powers.”
The case was assigned to a three-judge panel that consists of two appointees of Mr. Trump and one appointee of President Joseph R. Biden Jr. In a terse late-night order, the panel stayed the order by Judge Breyer, an appointee of President Bill Clinton, “pending further order,” which means the National Guard forces will stay subject to Mr. Trump’s control for now.
It also set a swift briefing schedule and a hearing for noon Pacific time on Tuesday.
Depending on how the panel eventually rules, either side could ask the full U.S. Court of Appeals for the Ninth Circuit to rehear the matter or could file an emergency appeal directly to the Supreme Court, where Republican appointees hold a six-member supermajority.
Lawyers for the state of California and Mr. Newsom filed their own brief opposing the federal government’s request for a stay shortly after the court had already granted it. The state argued that pausing Judge Breyer’s order would be “unnecessary and unwarranted in light of the district court’s extensive reasoning — in particular, its findings of irreparable harm to the state in the absence of injunctive relief.”
In his 36-page ruling, Judge Breyer said the Trump administration’s seizure of the California National Guard violated required procedures in the federal statute Mr. Trump had cited as providing authority for him to take over the state’s forces. The statute said such an order must go “through” Mr. Newsom, but Pete Hegseth, the secretary of defense, bypassed the governor and sent his directive to a general who oversees the Guard.
President Trump’s “actions were illegal — both exceeding the scope of his statutory authority and violating the 10th Amendment to the U.S. Constitution,” Judge Breyer wrote. “He must therefore return control of the California National Guard to the governor of the state of California forthwith.”
The directive would have taken effect at noon Pacific time on Friday had the appeals court not stayed it.
Judge Breyer’s ruling, which accused Mr. Trump of setting a “dangerous precedent for future domestic military activity,” was the latest in a series of judicial rebukes to Mr. Trump’s expansive claims of wartime or emergency powers over matters ranging from deporting people without due process to unilaterally imposing widespread tariffs. Court rulings blocking his actions have enraged the White House.
The ruling on the National Guard went beyond what California had asked for. While the state’s lawsuit had contended that Mr. Trump’s mobilization of the National Guard was illegal, its specific motion was for a temporary restraining order limiting military forces under federal control to guarding federal buildings in the city and no other law enforcement tasks.
Judge Breyer blocked Mr. Trump from using California’s National Guard at all. But he also rejected a request by the state and Mr. Newsom to restrain a separate group of active-duty Marines, which the administration has also mobilized to counter the protesters.
Mr. Hegseth mobilized 700 Marines from a base in California to participate in suppressing protests, and the state had wanted the judge to restrict them from accompanying immigration agents on the workplace raids that sparked the protests. But the active-duty troops so far have merely been staged in a neighboring county and have not gone into the city.
Judge Breyer said it would be inappropriate to issue any order restricting the Marines’ actions when they have not done anything that would violate the Posse Comitatus Act, which generally makes it illegal to use federal troops for law enforcement purposes on domestic soil. He said that the state would need to return to court within a week to try to turn his temporary order into a longer-lasting injunction, allowing time for events to develop.
“As of now, the court only has counsel’s speculation of what might happen,” the judge wrote.
Standing in front of the California flag at a news conference in the lobby of a state courthouse after the ruling on Thursday evening, Mr. Newsom hailed the decision.
“Today was really about a test of democracy,” he said. “We passed the test.”
Before the appeals court intervened, Mr. Newsom said that he had planned to direct National Guard members to resume the duties that they were carrying out before they were redirected by Mr. Trump, which included border control and forest management to reduce wildfire risk.
The news media offices of the White House and the Justice Department did not respond to requests for comment.
Judge Breyer had telegraphed his focus on the legality of the process by which Mr. Trump and Mr. Hegseth called up the National Guard at a hearing earlier on Thursday.
At the hearing, the Justice Department lawyer, Brett Shumate, argued that Mr. Hegseth had complied with the National Guard call-up statute. But even if he hadn’t, Mr. Shumate said, Mr. Trump had the legal authority to order the National Guard into federal service anyway.
Judge Breyer interrupted the Justice Department’s lawyer repeatedly and at one point waved a small copy of the Constitution in the air. Some of his pointed replies drew laughs from the packed courtroom of more than 100 people.
When it came, his ruling was scathing.
The state of California “and the citizens of Los Angeles face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions,” he wrote.
No president has deployed troops under federal control over the objections of a state governor since the Civil Rights era, when Southern governors were resisting court-ordered desegregation.
Since being federalized and deployed, some National Guard troops have accompanied U.S. Immigrations and Customs Enforcement agents on raids while others have primarily stood outside federal buildings in downtown Los Angeles during protests.
The legal face-off comes amid escalating political tensions between the Trump administration and the California governor. After Mr. Trump’s border czar, Tom Homan, threatened to arrest Mr. Newsom, Mr. Trump endorsed the idea on Monday, saying, “I’d do it.” In a televised speech on Tuesday, Mr. Newsom said that “democracy is under assault right before our eyes.”
After the ruling, Mr. Newsom, forcefully rebuked the tactics that ICE agents have employed to arrest and deport undocumented immigrants, describing conversations with children who had been separated from their parents and family members whose relatives had suddenly disappeared without a trace.
“That’s Donald Trump’s America,” he said, calling it “indiscriminate cruelty.”
Charlie Savage writes about national security and legal policy for The Times.
Kellen Browning is a Times political reporter based in San Francisco.
Laurel Rosenhall is a Sacramento-based reporter covering California politics and government for The Times.
The post National Guard Will Remain in L.A. Until a Legal Challenge Is Heard appeared first on New York Times.
