A federal appeals court appeared inclined on Tuesday to allow President Trump, against the wishes of Gov. Gavin Newsom, to keep using California’s National Guard for now to protect immigration enforcement agents and quell protesters in Los Angeles.
Throughout a 65-minute hearing, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit signaled skepticism of the idea that the judiciary should second-guess Mr. Trump’s determination that deploying the state militia to Los Angeles is necessary to protect federal agents and buildings.
The hearing came at a time when local organizers have vowed to continue protesting against immigration raids, though demonstrations in downtown Los Angeles have quieted since the weekend.
A district court judge, Charles Breyer, determined last week that Mr. Trump’s use of the National Guard was illegal and temporarily ordered the president to return control of the forces to Mr. Newsom.
But the Trump administration immediately appealed the ruling, and the Ninth Circuit panel stayed the lower court decision while it considered the matter. It seemed likely on Tuesday that the panel, which consists of two appointees of Mr. Trump and one of former President Joseph R. Biden Jr., would keep that stay in place.
The two Trump appointees, Judges Mark J. Bennett and Eric D. Miller, did the bulk of the talking. Both appeared skeptical of the Justice Department’s argument that courts have no ability to review Mr. Trump’s decision to invoke a statute allowing him to call up the Guard. But they also seemed inclined to find that the sometimes violent protests in Los Angeles were enough to defer to Mr. Trump’s decision.
And when a lawyer for California argued that Congress had not granted presidents sweeping discretion to decide when federalizing the National Guard would be justified, the Biden appointee, Judge Jennifer Sung, expressed doubt about his view.
“If we were writing on a blank slate, I would tend to agree with you, but the problem I see for you,” she said, is that an 1827 Supreme Court precedent interpreting a president’s power under a similar law “seemingly rejected the exact argument that you’re making.”
It may ultimately be up to the Supreme Court to determine what checks, if any, exist on a president’s power to deploy the National Guard over the objections of a governor. The outcome of the case could carry significant implications for limits on the use of the military force on domestic soil.
Samuel Harbourt, the lawyer for the state, argued that state and local law enforcement agencies took protest violence seriously but could handle it and that Mr. Trump was setting a bad precedent by seizing the state’s militia when it was unnecessary to do so.
“This poses a risk, makes it all too easy for a president to call forth the National Guard to serve a domestic political policy agenda in a way that threatens to impugn — call into question — the historical neutrality, impartiality, integrity of the military in the eyes of the public,” Mr. Harbourt said.
But Brett Shumate, a Justice Department lawyer, argued that a lower-court order that would require Mr. Trump to return control of the California National Guard back to Governor Newsom erroneously interfered with the president’s powers as commander in chief and “endangered lives.”
While consequential, the immediate question before the panel is narrow because the temporary restraining order the judges are reviewing is a short-term measure, and even if they took no further action, their existing stay would remain in effect until the order expires.
The Federal District Court judge has scheduled a hearing for Friday on whether to issue a longer-lasting injunction and to address other issues, including whether Mr. Trump’s use of active-duty Marines in Los Angeles is lawful.
In a live-streamed discussion minutes before the hearing began, Mr. Newsom acknowledged that the panel of judges was dominated by Trump appointees but said the courts were the only remaining check on the president’s power. Congress, under the control of Republicans, Mr. Newsom said, has become a “lap dog” to the Trump administration.
“We’re counting on the courts,” he said. “And we’re counting on people that showed up in record numbers over the weekend, unprecedented protests, which is amazing, to hold up this democracy.”
Protests erupted earlier this month after Immigration and Customs Enforcement carried out workplace raids in Los Angeles as part of the Trump administration’s immigration crackdown. Democratic leaders and activists have criticized ICE for raiding Southern California workplaces and carrying out indiscriminate sweeps in heavily Latino neighborhoods rather than focusing on people with serious criminal histories.
In response to the backlash, Mr. Trump invoked a rarely used statute to take federal control of the National Guard in the name of guarding immigration agents and facilities against protesters. Governor Newsom objected, saying that it was needlessly inflammatory and that the local authorities could handle unruly people who threw concrete and started fires within the larger group of peaceful protesters.
In downtown Los Angeles on Monday, things had returned to close to the normal state of semi-bustle two days after the “No Kings” rally drew tens of thousands of protesters angered by the Trump administration’s immigration crackdowns. Evidence of a week of protest was everywhere, with anti-ICE graffiti on buildings and anti-Trump signs scattered around.
The city seemed to be taking a breath. Police officers were no longer stationed in significant numbers outside Los Angeles City Hall. Many of the places where federal troops had been positioned last week were no longer under guard.
And Mayor Karen Bass of Los Angeles announced that she was ending the downtown curfew on Tuesday, a week after it had first been imposed. She said that she was prepared to reinstate restrictions if necessary but that the curfew, along with law enforcement efforts, had been “largely successful.”
The mobilization last week was the first time the federal government had deployed troops under federal control in a state over the clear objections of its governor since 1963, when President John F. Kennedy federalized the Alabama National Guard to carry out the court-ordered desegregation of the University of Alabama, which that state’s governor, George Wallace, was resisting.
(President Lyndon B. Johnson also federalized the state’s National Guard to protect civil rights marchers in 1965 without a formal request from Governor Wallace, but the governor did not object in that instance.)
But Mr. Kennedy used the Insurrection Act. Mr. Trump invoked a different statute as authority for his move, a rarely used law that allows a president to take federal control of a state’s National Guard under certain conditions — like when there is a rebellion against federal authority or the government is unable to enforce federal law through normal forces — and says such mobilization orders must go “through” governors.
In his ruling last week that Mr. Trump’s move was illegal, Judge Breyer said that the conditions in Los Angeles fell short of a “rebellion” and that immigration enforcement agents were still able to detain undocumented migrants despite encountering protesters during raids.
The judge also ruled that the administration had failed to comply with the statute’s procedural requirement because in following through on Mr. Trump’s order, Pete Hegseth, the secretary of defense, sent a directive taking control of California’s militia to the general who oversees it — bypassing Mr. Newsom.
At the appeals court hearing, Judge Bennett in particular seemed skeptical of the idea that Mr. Hegseth’s failure to send the order through Governor Newsom, or at least to copy him on the order, was a sufficient basis to declare the call-up illegal.
Mr. Trump and Mr. Hegseth have separately activated about 700 active-duty Marines to assist in protecting immigration enforcement activities.
Because the Marines had not yet been deployed into the city at the time of Thursday’s hearing, Judge Breyer said it would be premature for him to issue any order potentially restricting their activities. The Marines have since gone into Los Angeles and were videotaped detaining a man who was trying to enter a federal building. It turned out he was trying to run an errand at the Veterans Affairs office.
Officials from Los Angeles and from dozens of other cities across the nation submitted briefs to the appeals court arguing that local police departments know how to handle unrest and that the presence of military forces who are not coordinating with them heightens the risk of danger to officers and the public.
Richard Fausset contributed reporting.
Charlie Savage writes about national security and legal policy for The Times.
Laurel Rosenhall is a Sacramento-based reporter covering California politics and government for The Times.
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