Newsom v. Trump

141 F.4th 1032

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 19, 2025
• Docket: 25-3727
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 19 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GAVIN NEWSOM, In his official capacity No. 25-3727 as Governor of the State of California; D.C. No. STATE OF CALIFORNIA, 3:25-cv-04870-CRB Plaintiffs - Appellees, ORDER v.

DONALD J. TRUMP, in his official capacity as President of the United States; PETER HEGSETH, in his official capacity as Secretary of the Department of Defense; UNITED STATES DEPARTMENT OF DEFENSE,

Defendants - Appellants.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted June 17, 2025 San Francisco, California

Before: Mark J. Bennett, Eric D. Miller, and Jennifer Sung, Circuit Judges.

PER CURIAM:

In 10 U.S.C. § 12406, Congress authorized the President of the United States

to “call into Federal service members and units of the National Guard of any State”

whenever one or more of three conditions are satisfied. In response to disturbances 1 in Los Angeles stemming from federal enforcement of immigration laws, the

President invoked § 12406—and only that statute—to order 4,000 members of the

National Guard into federal service for 60 days to protect federal personnel

performing federal functions and to protect federal property.

The State of California and its Governor, Gavin Newsom, sued the President,

the Secretary of Defense, and the Department of Defense in federal court. Plaintiffs

alleged that Defendants’ actions were ultra vires and violated the Tenth Amendment

to the United States Constitution. They also alleged that the Secretary of Defense

and the Department of Defense violated the Administrative Procedure Act (APA).

Plaintiffs applied for a temporary restraining order (TRO), and, after a

hearing, the district court issued a TRO enjoining Defendants “from deploying

members of the California National Guard in Los Angeles” and directing Defendants

“to return control of the California National Guard to Governor Newsom.” The

district court issued the TRO primarily because it concluded that Plaintiffs are likely

to succeed on their claim that the President’s order federalizing members of the

California National Guard is ultra vires because none of the predicates to

federalization required under § 12406 exist and because the federalization order was

not issued “through the governor[]” of California, as the statute requires. Notably,

Plaintiffs conceded that National Guard members, if validly federalized, may be

deployed to protect federal personnel and property. The district court determined

2 that Plaintiffs presented no evidence at the TRO hearing that National Guard

members were engaged in any other activities, and Plaintiffs do not contest that

determination.

Defendants immediately appealed the TRO and filed an emergency motion to

stay the TRO pending appeal. We issued an administrative stay of the district court’s

order pending our adjudication of Defendants’ emergency motion for a stay.

We now grant the stay. Defendants have made the required strong showing

that they are likely to succeed on the merits of their appeal. We disagree with

Defendants’ primary argument that the President’s decision to federalize members

of the California National Guard under 10 U.S.C. § 12406 is completely insulated

from judicial review. Nonetheless, we are persuaded that, under longstanding

precedent interpreting the statutory predecessor to § 12406, our review of that

decision must be highly deferential. Affording the President that deference, we

conclude that it is likely that the President lawfully exercised his statutory authority

under § 12406(3), which authorizes federalization of the National Guard when “the

President is unable with the regular forces to execute the laws of the United States.”

Additionally, the Secretary of Defense’s transmittal of the order to the Adjutant

General of the California National Guard—who is authorized under California law

to “issue all orders in the name of the Governor,” CAL. MIL. & VET. CODE § 163—

likely satisfied the statute’s procedural requirement that federalization orders be

3 issued “through” the Governor. And even if there were a procedural violation, that

would not justify the scope of relief provided by the district court’s TRO. Our

conclusion that it is likely that the President’s order federalizing members of the

California National Guard was authorized under § 12406(3) also resolves the Tenth

Amendment claim because the parties agree that the Tenth Amendment claim turns

on the statutory claim.

We also conclude that the other stay factors—irreparable harm to Defendants,

injury to Plaintiffs, and the public interest—weigh in Defendants’ favor. Thus, we

grant the motion for a stay pending appeal.

I. BACKGROUND AND PROCEDURAL HISTORY

On June 6, 2025, a group of protesters tried to prevent Immigration and

Customs Enforcement (ICE) officials from operating in Los Angeles by throwing

objects at ICE vehicles. Later that evening, protesters gathered at ICE’s

Enforcement and Removal Operations (ERO) building in downtown Los Angeles.

Protesters “pinned down” several Federal Protective Service (FPS) officers and

threw “concrete chunks, bottles of liquid, and other objects” at the officers. The

protesters used “large rolling commercial dumpsters as a battering ram to breach the

parking garage gate and damage[] federal property.” The Los Angeles Police

Department arrived on the scene about an hour after being called by federal officers.

4 The protesters eventually dispersed at law enforcement’s direction, but the federal

building had been heavily vandalized.

The next day, on June 7, protesters continued to interfere with federal

enforcement operations by a Homeland Security Investigations Office in Paramount,

California, and continued to damage federal property. In a confrontation that lasted

over seven hours, the protesters blocked traffic and used shopping carts to barricade

the street. Some attacked ERO and Customs and Border Patrol (CBP) officers by

“box[ing] in” the officers and “throwing mortar-style fireworks with multiple

explosions” at them. Other protesters “engage[d] in dangerous behavior such as

throwing rocks and other objects, including a Molotov Cocktail at deputies,”

“burning a vehicle,” and “vandalizing property.” One ERO officer was trapped in

her law enforcement vehicle while protesters surrounded it, violently pounded and

shook it, and threw stones at it. One CBP officer suffered a shattered wrist caused

by a thrown object. Protesters also damaged the perimeter fence of a federal building

and three government vehicles.

In response to these incidents, the President signed a memorandum on June 7,

2025, calling into federal service at least 2,000 members of the National Guard

pursuant to his authority under 10 U.S.C. § 12406. The memorandum explained that

the service members were needed “to temporarily protect ICE and other United

States Government personnel who are performing Federal functions, including the

5 enforcement of Federal law, and to protect Federal property.” The President’s

memorandum directed the Secretary of Defense “to coordinate with the Governors

of the States and the National Guard Bureau in identifying and ordering into Federal

service the appropriate members and units of the National Guard.”

Later that evening, the Secretary of Defense sent a memorandum to

California’s Adjutant General to effectuate the President’s memorandum. This

memorandum was titled, “Memorandum for Adjutant General of the California

National Guard Through: The Governor of California,” and it enclosed a copy of the

President’s memorandum. The Secretary’s memorandum called into service 2,000

California National Guard members for 60 days. The Adjutant General forwarded

both memoranda to Governor Newsom.

Protests against federal officers continued into the following days. For

example, during the night of June 8, protesters in downtown Los Angeles “set[] off

commercial-grade fireworks toward federal officers and thr[ew] objects at passing

law enforcement vehicles.” They lit fires in dumpsters and “vandalized dozens of

buildings with graffiti, including the Federal Courthouse.” On June 9, a crowd of

1,000 protesters gathered near a federal building. One protester drove by the

building and fired paintballs at FPS officers, hitting at least one in the head and neck.

At another federal building, protesters attacked a federal van carrying multiple non-

citizens and officers, rocking the vehicle and smashing its windows. The building

6 had to be closed for most of the day and remained closed the next day, disrupting

the operations of many federal agencies working in the building.

On June 9, in response to these events, the Secretary issued a second

memorandum, calling into service an additional 2,000 members of the California

National Guard for 60 days. That day, Plaintiffs filed suit against Defendants. The

complaint asserts ultra vires, Tenth Amendment, and APA claims, all primarily based

on the allegation that Defendants unlawfully called into federal service members of

the California National Guard. The complaint seeks declaratory and injunctive relief.

On June 10, Plaintiffs moved for a TRO. Plaintiffs asserted that they were

“likely to suffer several types of irreparable harm in the absence of temporary relief,”

highlighting as a “stand[] out” harm “the very high risk of substantial civil unrest as

a direct result” of Defendants’ deployment of the National Guard. Plaintiffs argued

that the use of the National Guard “serves only to spread fear and heighten tensions

in Los Angeles” and would “further de-stabilize the community.” Plaintiffs also

urged that the deployment of the National Guard “diverts necessary state resources”

because National Guard members help fight forest fires, stop drug trafficking, and

protect against cyber threats.

Defendants opposed the motion, and the district court held a hearing on June

12. The district court granted the TRO that same day. Responding to Defendants’

argument that the President’s decision to federalize members of the California

7 National Guard was not justiciable, the district court concluded that neither the

political question doctrine nor § 12406 itself precluded judicial review, but that it

must give deference to the President’s factual assertions. On the merits of Plaintiffs’

ultra vires claim, the parties agreed that the questions presented were whether the

President had statutory authority to federalize National Guard members under either

§ 12406(2) or (3).1 The district court then determined that Plaintiffs were likely to

succeed on their ultra vires claim because the conditions for federalization under

those subsections were not satisfied, and because the federalization order was not

issued “through the governor[]” of California, as the statute requires. Based on its

conclusion that the President acted without statutory authority, the district court also

concluded that Plaintiffs were likely to succeed on their Tenth Amendment claim.2

The district court declined to address Plaintiffs’ ultra vires claim based on the Posse

Comitatus Act, see 18 U.S.C. § 1385, because Plaintiffs conceded that using federal

forces to protect federal personnel and property would not violate the Posse

Comitatus Act and because Plaintiffs presented no evidence that National Guard

members were engaged in any other activities. The district court underscored that

“Plaintiffs d[id] not [yet] contend that National Guard members have in fact

1 Plaintiffs have not argued that the President invoked only one subsection or the other. 2 Plaintiffs did not rely on their APA claim in seeking the TRO.

8 participated in any arrests” in violation of the Posse Comitatus Act but noted that

Plaintiffs could continue to pursue that claim, including by presenting any additional

evidence at the upcoming preliminary injunction hearing.

The district court then found that Plaintiffs had suffered irreparable injury and

that the public interest and balance of the equities tipped in their favor. The district

court concluded that while “Defendants no doubt have an ‘interest in protecting

federal agents and property’” (quoting Index Newspapers LLC v. U.S. Marshals Serv.,

977 F.3d 817, 838 (9th Cir. 2020)), “[f]ederal agents and property may actually well

be served by de-militarization and a concurring de-escalation of the situation.” The

district court concluded that the deployment of the National Guard “inflames tensions

with protesters” and “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.” The district court’s order temporarily enjoined—with no

end date—Defendants “from deploying members of the California National Guard in

Los Angeles” and directed Defendants “to return control of the California National

Guard to Governor Newsom.” The district court stayed its order until noon on June

13, 2025, and set a preliminary injunction hearing for June 20, 2025.

9 Defendants immediately filed a notice of appeal and moved for an emergency

stay pending appeal. As noted, we issued an administrative stay of the TRO. We

held oral argument on June 17, 2025.3

II. APPELLATE JURISDICTION

Ordinarily, we lack jurisdiction over the appeal of a TRO. See E. Bay

Sanctuary Covenant v. Trump, 932 F.3d 742, 762 (9th Cir. 2018). At this time,

however, we are not considering an appeal of a TRO, but rather, Defendants’ motion

for a stay of the TRO pending appeal. We have jurisdiction to grant such a stay

under the All Writs Act, 28 U.S.C. § 1651.

Nonetheless, Plaintiffs argue that we should not grant the stay because there

are “serious questions” as to whether we would have jurisdiction to review the

district court’s issuance of a TRO. Although Plaintiffs’ argument goes to the merits

of Defendants’ motion for a stay, not our jurisdiction, we address it here.

As noted, we generally lack jurisdiction over the appeal of a TRO. But when

a TRO “possesses the qualities of a preliminary injunction,” it is reviewable under

28 U.S.C. § 1292(a)(1). Serv. Emps. Int’l Union v. Nat’l Union of Healthcare

Workers, 598 F.3d 1061, 1067 (9th Cir. 2010); see Dep’t of Educ. v. California, 145

S. Ct. 966, 968 (2025) (per curiam).

3 We grant amici curiae’s motions for leave to file amicus briefs. Dkt. Nos. 17, 18, 20, 21, 22, 24. 10 In assessing whether a TRO is best construed as an appealable preliminary

injunction, we evaluate whether “an adversary hearing has been held, and [whether]

the court’s basis for issuing the order [was] strongly challenged.” E. Bay, 932 F.3d

at 762 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002)).

“Likewise, where the duration of the order exceeds the ordinary duration for TROs

as set forth in the Federal Rules of Civil Procedure, classification as a TRO is

unlikely.” Serv. Emps., 598 F.3d at 1067. A TRO may also be appealable when it

“has the ‘practical effect’ of granting or denying an injunction.” Abbott v. Perez,

585 U.S. 579, 594 (2018) (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 83

(1981)).

The TRO here “possesses the qualities of a preliminary injunction.” Serv.

Emps., 598 F.3d at 1067. The district court issued the TRO after an adversarial

hearing at which Defendants challenged the basis for the order. That hearing came

after the parties filed extensive written materials challenging the district court’s basis

for the order. Plaintiffs moved for a TRO, Defendants filed an opposition, and

Plaintiffs filed a reply. Moreover, while the district court has scheduled a hearing

for June 20, 2025, to determine whether it should issue a preliminary injunction, the

TRO does not automatically expire on that date, so it could be in force for more than

14 days.

11 The TRO also has the practical effect of a preliminary injunction. It enjoined

Defendants from deploying members of the National Guard in Los Angeles and

directed return of control of the National Guard to Plaintiffs. President Trump

determined that he could not “ensure the protection and safety of Federal personnel

and property” without using the National Guard. If Defendants are not allowed to

appeal the TRO, they “would be effectively foreclosed from pursuing further

interlocutory relief” because the National Guard could not be used to protect federal

property and agents. Env’t Def. Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir.

1980).

On these facts, we conclude that the district court’s order is effectively a

preliminary injunction. Consequently, issues of appellate jurisdiction do not affect

the likelihood of Defendants’ success on their appeal from the TRO.

III. STANDARD OF REVIEW

We review Defendants’ request for a stay pending appeal using the

“traditional stay factors.” Nken v. Holder, 556 U.S. 418, 426 (2009). Thus, we

consider “(1) whether the stay applicant has made a strong showing that he is likely

to succeed on the merits; (2) whether the applicant will be irreparably injured absent

a stay; (3) whether issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies.” Id. (quoting

12 Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the

most critical.” Id. at 434.

IV. DISCUSSION

A. Likelihood of Success

In determining whether Defendants have made a strong showing that they are

likely to succeed on the merits of their appeal of the TRO, we address only the issues

that the district court resolved in granting the TRO. Defendants argue the district

court erred in concluding that Plaintiffs’ ultra vires claim is justiciable. Defendants

also argue that the district court erred in concluding that Plaintiffs were likely to

succeed on the merits of their claim that the President’s order federalizing California

National Guard members was not authorized under § 12406. The parties agree that

Plaintiffs’ Tenth Amendment claim, at this stage, rises and falls with their ultra vires

claim based on § 12406. In opposing the stay, Plaintiffs do not press their claims

based on the Posse Comitatus Act or the APA. Consequently, the parties’ disputes

about how federal forces are being deployed are not before us.

1. The President’s Authority Under § 12406

a. Political Question Doctrine

Defendants argue that the claim challenging the President’s order federalizing

members of the National Guard under § 12406 is not justiciable under the political

question doctrine. We disagree.

13 “In general, the Judiciary has a responsibility to decide cases properly before

it, even those it ‘would gladly avoid.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 566

U.S. 189, 194 (2012) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404

(1821)). There is “a narrow exception to that rule, known as the ‘political question’

doctrine.” Id. at 195. “The nonjusticiability of a political question is primarily a

function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210 (1962).

Because the political question doctrine is grounded in the constitutional

separation of powers, it has traditionally been limited to constitutional cases. See

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 (D.C. Cir. 2010)

(Kavanaugh, J., concurring in the judgment) (“[T]he Supreme Court has invoked the

political question doctrine only in cases alleging violations of the Constitution.”). It

has not been available in statutory cases. Applying it in statutory cases would

“systematically favor” the President over Congress by ignoring the limitations that

the latter placed on the former’s authority, threatening the very separation of powers

that the doctrine is meant to protect. Id. at 857. Thus, to determine whether the

political question doctrine precludes judicial review, we must first determine

whether the President’s authority to federalize National Guard members is

constitutional or statutory. We conclude it is statutory.

The Constitution provides that “[t]he President shall be Commander in

Chief . . . of the Militia of the several States, when called into the actual Service of

14 the United States.” U.S. CONST. art. II, § 2, cl. 1 (emphasis added). But the

Constitution authorizes Congress, not the President, to determine when (and how)

the militia can be called into actual service of the United States: pursuant to the

“Militia Clauses,” Congress has the power “[t]o provide for calling forth the Militia

to execute the Laws of the Union, suppress Insurrections and repel Invasions,” as

well as the power “[t]o provide for organizing, arming, and disciplining, the Militia,

and for governing such Part of them as may be employed in the Service of the United

States.” Id. art. I, § 8, cls. 15–16. Congress has delegated some of its power to call

forth the militia to the President by statute, including 10 U.S.C. § 12406, which

authorizes the President to “call into federal service members and units of the

National Guard of any state” under specified exigent circumstances. Both parties

agree that calling members of a state’s National Guard “into federal service” is the

legal equivalent of “calling forth the Militia.”

At various points in this litigation, Defendants have referred to the President’s

“inherent constitutional authority.” But Defendants represented to the district court

that they are not arguing that President Trump exercised “some other independent

Article II authority”—rather, as Defendants acknowledged, “[t]he only authority the

president invoked was this particular statute,” that is, § 12406. Defendants thus do

not argue that the President’s inherent authority, whatever its scope, would allow

him to “take[] measures incompatible with the expressed or implied will of

15 Congress” reflected in that statute. Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 637 (1952) (Jackson, J., concurring). The source of the President’s power

to federalize the National Guard is statutory, not constitutional.

Consequently, the political question doctrine does not bar judicial review.

b. Statutory Scope of Review

The question we must answer is: To what extent has Congress, in § 12406,

committed the challenged decision to the President’s discretion? This question is

purely a matter of statutory interpretation, and it is justiciable. See, e.g., Trump v.

J.G.G., 145 S. Ct. 1003, 1006 (2025) (per curiam) (explaining that “questions of

interpretation” of statutes fall within our purview (quoting Ludecke v. Watkins, 335

U.S. 160, 163 (1948))). After all, it remains “emphatically the province and duty of

the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). This includes “determining the limits of statutory grants

of authority,” Stark v. Wickard, 321 U.S. 288, 310 (1944), and “determin[ing]

whether [a government official] did exceed his powers” granted by the statute,

Harmon v. Brucker, 355 U.S. 579, 582 (1958) (per curiam).

“As with any question of statutory interpretation, our analysis begins with the

plain language of the statute.” Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).

“Interpretation of a word or phrase depends upon reading the whole statutory text,

considering the purpose and context of the statute, and consulting any precedents or

16 authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486

(2006).

The statute provides:

Whenever—

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

10 U.S.C. § 12406.

Defendants argue that this language precludes review. They rely on Dalton

v. Specter, 511 U.S. 462 (1994), for the proposition that whenever a statute “commits

decisionmaking to the discretion of the President, judicial review of the President’s

decision is not available.” Id. at 477. In Dalton, the Act in question, concerning the

closure of military bases, “authorized unfettered discretion by the President to either

approve or disapprove the package of base closures” proposed by an independent

commission. Sierra Club v. Trump, 929 F.3d 670, 696 (9th Cir. 2019); see Defense 17 Base Closure and Realignment Act of 1990, Pub. L. No. 101-510, § 2903(e)(1), 104

Stat. 1808, 1812 (“The President shall . . . transmit to the Commission and to the

Congress a report containing the President’s approval or disapproval of the

Commission’s recommendations.”). Because “the Act . . . d[id] not by its terms

circumscribe the President’s discretion to approve or disapprove the Commission’s

report,” the Court concluded that the President’s decision was “not reviewable” for

abuse of discretion. 511 U.S. at 470; see id. at 474–76.

Unlike in Dalton, the statute here enumerates three predicate conditions for

the President’s decision to call forth the National Guard. As the district court

explained, the text of the statute does not make the President the sole judge of

whether one or more of the statutory preconditions exist. See 10 U.S.C. § 12406.

Thus, we disagree with Defendants’ contention that § 12406 completely precludes

judicial review of the President’s determination that a statutory precondition exists.

However, that leaves the question whether we owe that determination

deference, and if so, how much? Again, that is a question of statutory interpretation.

And if we were considering the text of § 12406 alone, we might conclude that the

President’s determination is subject to review like certain other factual findings that

are preconditions for executive action under a statute. See Doe #1 v. Trump, 957

F.3d 1050, 1066–67 (9th Cir. 2020).

18 But we are not writing on a blank slate. The history of Congress’s statutory

delegations of its calling forth power, and a line of cases beginning with Martin v.

Mott, 25 U.S. (12 Wheat.) 19 (1827), interpreting those delegations, strongly suggest

that our review of the President’s determinations in this context is especially

deferential.

Congress first delegated its constitutional calling forth power to the President

in the Militia Act of 1792, see ch. 28, §§ 1–2, 1 Stat. 264, 264 (repealed 1795).

Congress renewed that delegation in the Militia Act of 1795, see ch. 36, § 1, 1 Stat.

424, 424. The 1795 Act was a precursor to the Militia Act of 1903, see Pub. L. No.

57-33, §§ 1, 4, 32 Stat. 775, 775–76, which is a precursor to § 12406. See Frederick

Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 186–

88 (1940).

And like § 12406, the 1795 Act contained a predicate “invasion” condition:

“[W]henever the United States shall be invaded, or be in imminent danger of

invasion . . . , it shall be lawful for the President of the United States to call forth

such number of the militia . . . as he may judge necessary to repel such invasion.”

Militia Act of 1795, ch. 36, § 1, 1 Stat. 424, 424; cf. 10 U.S.C. § 12406

(“Whenever[] . . . the United States . . . is invaded or is in danger of invasion . . . ,

the President may call into Federal service members and units of the National Guard

of any State in such numbers as he considers necessary to repel the invasion . . . .”).

19 The Supreme Court interpreted the Militia Act of 1795 in Martin, which arose

out of President Madison’s decision to call the New York militia into federal service

during the War of 1812. See 25 U.S. at 28. Jacob Mott, a New York militiaman,

refused to turn up for service. He was court-martialed and fined, and the State seized

his property to satisfy the debt. Mott then brought an action for replevin in state

court, arguing that the seizure was illegal because President Madison’s order

federalizing the militia was invalid. See id.

The Supreme Court rejected that argument. The Court began by explaining

that the Constitution gave the calling forth power to Congress, but Congress

“confided” that power to the President when the “exigency” of an invasion “has

arisen.” Id. at 29. The Court first recognized that the delegated power was, “in its

terms, a limited power, confined to cases of actual invasion, or of imminent danger

of invasion.” Id. The Court then framed the issue presented as:

If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President?

Id. at 29–30. The Court answered that question by stating that “the authority to

decide whether the exigency has arisen, belongs exclusively to the President, and

that his decision is conclusive upon all other persons.” Id. at 30. In reaching that

20 conclusion, the Court relied in part on the nature of a foreign invasion and the need

for military subordinates to follow orders. See id. In particular, because “[t]he

power itself is to be exercised upon sudden emergencies, upon great occasions of

state, and under circumstances which may be vital to the existence of the Union,”

the Court reasoned that “every delay, and every obstacle to an efficient and

immediate compliance, necessarily tend[s] to jeopard[ize] the public interests.” Id.

The Court then explained that “the language of the act of 1795” supported its

“conclusion drawn from the nature of the [delegated] power itself.” Id. at 31. The

Court followed the “sound rule of construction” that “[w]henever a statute gives a

discretionary power to any person, to be exercised by him upon his own opinion of

certain facts, . . . the statute constitutes him the sole and exclusive judge of the

existence of those facts.” Id. at 31–32 (emphasis added). The Court further

explained that although the power delegated to the President under the Milita Act is

“susceptible of abuse,” the “remedy for this” is political: “in addition to the high

qualities which the Executive must be presumed to possess, of public virtue, and

honest devotion to the public interests,” it is “the frequency of elections, and the

watchfulness of the representatives of the nation” that “carry with them all the checks

which can be useful to guard against usurpation or wanton tyranny.” Id. at 32.

Plaintiffs correctly note that some of the Martin Court’s reasoning addressed

factual circumstances of that case that are not present here: particularly the Court’s

21 consideration of the nature of a foreign invasion and concerns about militiamen

disobeying orders. See id. at 29 (explaining that the 1795 Act considers an “invasion

from any foreign nation or Indian tribe”); id. at 30 (“A prompt and unhesitating

obedience to orders is indispensable to the complete attainment of the object.”).

Still, for the following reasons, we conclude that, under Martin and its progeny, we

must give a great level of deference to the President’s determination that a predicate

condition exists.

First, much of the Court’s reasoning in Martin appears equally applicable

regardless of the case’s particular facts. See, e.g., id. at 30 (explaining that the

President’s power to command the militia “in times of insurrection and invasion,

are . . . natural incidents to the duties of superintending the common defence, and of

watching over the internal peace of the confederacy” (emphasis added) (quoting THE

FEDERALIST NO. 29 (Alexander Hamilton))).

Second, if Congress had disagreed with the Martin Court’s interpretation of

the 1795 Act, it could have amended the statute to provide for greater judicial review

of the existence of a predicate condition. Congress did not do so at the time, and

since then, Congress has modified the statutory delegations of the calling forth

power in various ways, but the text of § 12406 is, in several material respects, the

same as the text quoted in Martin. See 10 U.S.C. § 12406 (“Whenever[] . . . the

United States . . . is invaded or is in danger of invasion . . . , the President may call

22 into Federal service members and units of the National Guard of any State in such

numbers as he considers necessary to repel the invasion . . . .”). “We presume that

Congress is aware of pre-existing judicial interpretations of statutory language it

replicates in later statutes, and that it seeks to import those interpretations into the

new statute.” United States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc)

(citing Cannon v. Univ. of Chi., 441 U.S. 677, 696–98 (1979)). Of course, Congress

still has the prerogative to change the delegation of the calling forth power, and the

nature of judicial review of any exercise of that statutory authority.

Third, the Supreme Court has not understood Martin to be a narrow decision

addressing only the military chain of command. In Luther v. Borden, 48 U.S. (7

How.) 1 (1849), the Supreme Court evaluated an action for trespass that turned on

which of two factions was the legitimate government of Rhode Island. Id. at 34–35.

During the dispute, President Tyler concluded that there was enough unrest to invoke

the promise of federal protection against “domestic Violence” in the Guarantee

Clause. See Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114

YALE L.J. 149, 172 (2004); U.S. CONST. art. IV, § 4. The President’s ability to call

forth the militia to offer that protection came from the Militia Act of 1795, which

permitted him to do so “in case of an insurrection in any State against the government

thereof.” Luther, 48 U.S. at 43 (quoting Militia Act of 1795, ch. 36, § 1, 1 Stat. 424,

424). And, relying on Martin, the Court explained that the 1795 Act gave “the power

23 of deciding whether the exigency had arisen . . . to the President.” Id.; see id. at 44–

45 (citing Martin, 25 U.S. at 29–31). The Court made clear that the President’s

authority was preclusive. See id. at 43 (“After the President has acted and called out

the militia, is a Circuit Court of the United States authorized to inquire whether his

decision was right? . . . If the judicial power extends so far, the guarantee contained

in the Constitution of the United States is a guarantee of anarchy, and not of order.”).

That view of Martin has remained the settled understanding of the Supreme

Court and among legal scholars. See Zivotofsky, 566 U.S. at 205–06, 206 n.1

(Sotomayor, J., concurring in part and concurring in the judgment) (citing Martin

for the proposition that “courts are particularly ill suited to intervening in exigent

disputes necessitating unusual need for ‘attributing finality to the action of the

political departments’” (quoting Coleman v. Miller, 307 U.S. 433, 454 (1939)));

Vladeck, supra, at 172 (“Per the Mott Court, then, the 1795 Militia Act granted broad

power to the Executive to determine, for himself, when circumstances necessitated

the calling forth of the militia, and such a determination was not subject to judicial

review.”); Elizabeth Goitein & Joseph Nunn, An Army Turned Inward: Reforming

the Insurrection Act to Guard Against Abuse, 13 J. NAT’L SEC. L. & POL’Y 355, 394

(2023) (citing Martin and explaining that “[i]n cases involving the Insurrection Act’s

precursor laws [including the Militia Act of 1795], the Supreme Court held that

courts could not review the president’s determination that an exigency existed that

24 required the deployment of military troops”). Given the closely related nature of the

statutes, Martin requires that the President’s determination that an exigency exists

be given significant deference.

Fourth, we recognize that Martin concerned a question that directly implicated

foreign policy, while this case implicates the President’s domestic use of military

force, and that as a general rule, we afford the President greater latitude in the former

context. Cf. Doe, 957 F.3d at 1066–67 (explaining, for example, that the President’s

“power is more circumscribed when he addresses a purely domestic economic

issue”). However, § 12406 is not limited to the domestic use of military force.

Rather, the statute also permits the President to federalize the National Guard

“[w]henever[] . . . the United States . . . is invaded or is in danger of invasion by a

foreign nation.” 10 U.S.C. § 12406. We see no reason that Congress would have

intended for the President to receive significant deference when he invokes the first

precondition in § 12406, but not when he invokes the other two. Moreover,

California’s contention is undercut by Luther, which relied heavily on Martin when

evaluating the deference due to the President when he invoked the 1795 Act in a

purely domestic dispute. See 48 U.S. at 44–45 (citing Martin, 25 U.S. at 29–31).

California emphasizes that Martin is nearly 200 years old, and that it is in

some tension with more recent decisions about the reviewability of executive

determinations—even determinations about questions such as the existence of an

25 invasion. See J.G.G., 145 S. Ct. at 1006 (“[W]e have held that an individual subject

to detention and removal under [the Alien Enemies Act] is entitled to ‘judicial

review’ as to ‘questions of interpretation and constitutionality’ of the Act . . . .”

(quoting Ludecke, 335 U.S. at 163)); Kucana v. Holder, 558 U.S. 233, 251 (2010)

(“When a statute is ‘reasonably susceptible to divergent interpretation, we adopt the

reading that accords with traditional understandings and basic principles: that

executive determinations generally are subject to judicial review.’” (quoting

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995))). But Martin’s

continuing viability is not for us to decide. The Supreme Court has admonished that

“[i]f a precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should follow

the case which directly controls, leaving to this Court the prerogative of overruling

its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005).

All that said, Martin does not compel us to accept the federal government’s

position that the President could federalize the National Guard based on no evidence

whatsoever, and that courts would be unable to review a decision that was obviously

absurd or made in bad faith. In Martin, the Court addressed the argument that “the

power confided to the President is a limited power” that “can be exercised only in

the cases pointed out in the statute,” and the Court explained that “[w]hen the

26 President exercises an authority confided to him by law, the presumption is that it is

exercised in pursuance of law.” Id. at 32–33. As the Court noted in Martin, a “public

officer is presumed to act in obedience to his duty” only “until the contrary is

shown.” Id. at 33. Moreover, discussing Martin, the Supreme Court has observed

that “[t]he nature of the power also necessarily implies that there is a permitted range

of honest judgment as to the measures to be taken in meeting force with force, in

suppressing violence and restoring order,” and that “[s]uch measures, conceived in

good faith, in the face of the emergency and directly related to the quelling of the

disorder or the prevention of its continuance, fall within the discretion of the

Executive in the exercise of his authority to maintain peace.” Sterling v. Constantin,

287 U.S. 378, 399–400 (1932) (emphases added); see Panama Refin. Co. v. Ryan,

293 U.S. 388, 446 (1935) (Cardozo, J., dissenting) (“A court will not revise the

discretion of the Executive, sitting in judgment on his order as if it were the verdict

of a jury. Martin v. Mott, supra. On the other hand, we have said that his order may

not stand if it is an act of mere oppression, an arbitrary fiat that overleaps the bounds

of judgment.”). Consistent with Martin, courts may at least review the President’s

determination to ensure that it reflects a colorable assessment of the facts and law

within a “range of honest judgment.” Sterling, 287 U.S. at 399.

At this preliminary stage of the litigation, we need not further specify the

precise standard that governs our review.

27 c. Application

With those principles in mind, we consider whether the President exceeded

the limits of his statutory grant of authority under § 12406. We start with

§ 12406(3): “the President is unable with the regular forces to execute the laws of

the United States.” 10 U.S.C. § 12406(3). Because that provision is sufficient to

allow us to conclude that Defendants are likely to prevail in this litigation, we do not

reach the other condition invoked by the President, § 12406(2), concerning

“rebellion.”

The district court interpreted § 12406(3) as requiring total or near total

interference. It stated:

[T]he statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws. . . . The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here.

But as Defendants correctly argue, “Section 12406(3) cannot plausibly be read

to mean that so long as some amount of execution of the laws remains possible, the

statute cannot be invoked, regardless of how much execution of the laws remains

thwarted or how much personal danger federal personnel face during operations,” or

that “so long as any quantum of federal law enforcement could be accomplished in

the face of mob violence,” “the President would be unable to call up the Guard to

respond.” Section 12406 does not have as a prerequisite that the President be 28 completely precluded from executing the relevant laws of the United States in order

to call members of the National Guard into federal service, nor does it suggest that

activation is inappropriate so long as any continued execution of the laws is feasible.

On the other hand, we do not think that any minimal interference with the

execution of laws is, by itself, enough to justify invoking § 12406(3). The statutory

context confirms that. Subsections one and two of the statute discuss unusual and

extreme exigencies—invasions and rebellions—that threaten the normal operations

of civil government. If we were to adopt the federal government’s reading of

subsection three, it would swallow subsections one and two, because any invasion

or rebellion renders the President unable to exercise some federal laws. See Fischer

v. United States, 603 U.S. 480, 490 (2024) (“Congress would not go to the trouble

of spelling out [a list of terms] if a neighboring term swallowed it up . . . .”); Yates

v. United States, 574 U.S. 528, 543 (2015) (plurality opinion) (relying “on the

principle of noscitur a sociis—a word is known by the company it keeps—to ‘avoid

ascribing to one word a meaning so broad that it is inconsistent with its

accompanying words, thus giving unintended breadth to the Acts of Congress’”

(quoting Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995))).

Under a highly deferential standard of review, Defendants have presented

facts to allow us to conclude that the President had a colorable basis for invoking

§ 12406(3). They presented evidence, detailed above, of protesters’ interference

29 with the ability of federal officers to execute the laws, leading up to the President’s

federalization of the National Guard on June 7. There is evidence that the day before,

protesters threw objects at ICE vehicles trying to complete a law enforcement

operation, “pinned down” several FPS officers defending federal property by

throwing “concrete chunks, bottles of liquid, and other objects,” and used “large

rolling commercial dumpsters as a battering ram” in an attempt to breach the parking

garage of a federal building. Plaintiffs’ own submissions state that some protesters

threw objects, including Molotov cocktails, and vandalized property. According to

the declarations submitted by Defendants, those activities significantly impeded the

ability of federal officers to execute the laws.

Affording appropriate deference to the President’s determination, we

conclude that he likely acted within his authority in federalizing the National Guard

under 10 U.S.C. § 12406(3).

2. Procedural Requirement of § 12406

Under § 12406, the President’s “[o]rders . . . shall be issued through the

governors of the States.” The district court determined that Defendants failed to

comply with this procedural requirement and that such failure meant that Defendants

exceeded the scope of their lawful statutory authority.

Defendants argue that they complied with the procedural requirement because

(1) the President called Governor Newsom about the situation in Los Angeles on

30 June 6; and (2) the Secretary of Defense sent the President’s memorandum to

California’s Adjutant General, along with the Secretary’s memorandum that

contained “Through: The Governor of California” in its title, and the Adjutant

General forwarded both memoranda to Governor Newsom. Defendants also argue

that even if they erred as a technical matter, any procedural error cannot justify the

district court’s injunction because the President is not legally required to obtain the

consent of the Governor, or to consult with him, before calling the National Guard

into federal service.

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. Plaintiffs do not dispute that

California’s Adjutant General received the memoranda from the Secretary of

Defense, relinquished command to the federal military accordingly, and forwarded

the memoranda to Governor Newsom. Although Governor Newsom did not

personally issue the order relinquishing state command, § 12406 requires that the

President’s order be issued through the Governor, not directly by the Governor.

Nothing in § 12406 prevents the State from delegating to a subordinate, such as the

31 Adjutant General, the Governor’s authority to issue such orders. See Gonzales &

Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep’t of Homeland Sec., 107 F.4th 1064,

1075–76 (9th Cir. 2024) (explaining that express statutory authority is not required

for delegation to subordinates).

Even if the statute contemplated strict adherence to a process that did not

allow for delegation, the President’s failure to issue the federalization order directly

“through” the Governor of California does not limit his otherwise lawful authority

to call up the National Guard. See Dolan, 546 U.S. at 486 (“Interpretation of a word

or phrase depends upon reading the whole statutory text, considering the purpose

and context of the statute, and consulting any precedents or authorities that inform

the analysis.”).

First, the text of § 12406 does not give governors any veto power over the

President’s federalization decision.4 The omission of an express consent

requirement is telling, as Congress provided governors with veto power in another

section of Title 10. See 10 U.S.C. § 12301(d) (“However, a member of the Army

National Guard of the United States or the Air National Guard of the United States

may not be ordered to active duty under this subsection without the consent of the

governor or other appropriate authority of the State concerned.” (emphasis added));

4 The district court correctly acknowledged that nothing in § 12406 requires the President to obtain a governor’s consent or approval before lawfully calling in the National Guard. 32 Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do not lightly

assume that Congress has omitted from its adopted text requirements that it

nonetheless intends to apply, and our reluctance is even greater when Congress has

shown elsewhere in the same statute that it knows how to make such a requirement

manifest.”).

Similarly, Plaintiffs’ argument that the text requires, “[a]t a minimum,” that

the Governor be “consulted about an order” is not supported by the language of

§ 12406. Rather, the decision to activate the National Guard under § 12406 is

textually committed to the President alone. See 10 U.S.C. § 12406 (“[T]he President

may call into Federal service members and units of the National Guard . . . .”

(emphasis added)). Even with the requirement that such orders be issued “through

the governor[],” id., that provision does not grant the governor any “consulting” role.

It simply delineates the procedural mechanisms through which the President’s orders

are issued.

Second, the purpose and context of § 12406 suggest that the statute’s

procedural requirement does not affect the President’s authority to federalize the

National Guard. As discussed above, § 12406 delegates to the President part of

Congress’s constitutional authority to “call[] forth the Militia to execute the Laws of

the Union, suppress Insurrections and repel Invasions.” U.S. CONST. art. I, § 8, cl.

15. The President’s power under § 12406 is similar to his authority under the statute

33 analyzed in Martin, which described the necessity of “prompt and unhesitating

obedience” to fulfill the statute’s purpose. 25 U.S. at 30. In that context, we think

it unlikely that Congress would have enacted a procedural requirement giving the

Governor effective veto power over the President’s otherwise lawful orders.

In any event, even if Defendants failed to comply with the statute’s procedural

requirement, such failure would not justify the injunctive relief imposed by the

district court. Assuming arguendo that Plaintiffs were likely to prevail on their claim

that Defendants violated the statute’s procedural requirement, the proper remedy

would be injunctive relief tailored to Defendants’ failure to issue the order through

the Governor—not an injunction prohibiting the President from exercising his lawful

authority to call up the National Guard. See Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 32–33 (2008) (explaining that injunctive relief must be tailored to the

alleged violation). At most, such tailored relief would be an injunction directing the

President to send the relevant memoranda directly to the Governor.

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

34 authority under § 12406 and does not justify the current scope of the injunction

imposed by the district court.5

B. Remaining Stay Factors

In addition to the merits, we consider three other factors in assessing a motion

for a stay: “whether the applicant will be irreparably injured absent a stay”; “whether

issuance of the stay will substantially injure the other parties interested in the

proceeding”; and “where the public interest lies.” Nken, 556 U.S. at 426 (quoting

Hilton, 481 U.S. at 776). The last two factors “merge when the Government is the

opposing party.” Id. at 435.

Both irreparable harm and the public interest weigh in favor of Defendants,

who have an uncontested interest in the protection of federal agents and property and

the faithful execution of law. See Index Newspapers, 977 F.3d at 838. The

undisputed facts demonstrate that before the deployment of the National Guard,

protesters “pinned down” several federal officers and threw “concrete chunks,

bottles of liquid, and other objects” at the officers. Protesters also damaged federal

5 As noted, the district court’s determination that Plaintiffs were likely to succeed on their Tenth Amendment claim rested, at least in part, on its conclusion that the President exceeded his scope of authority under § 12406. Because we conclude that it is likely that the President properly exercised his authority under § 12406(3) based on the circumstances before us, and Plaintiffs do not make any alternative Tenth Amendment arguments in response to the stay motion, we also conclude Defendants have made a strong showing that the TRO could not issue based on Plaintiffs’ likelihood of succeeding on their Tenth Amendment claim. 35 buildings and caused the closure of at least one federal building. And a federal van

was attacked by protesters who smashed in the van’s windows. The federal

government’s interest in preventing incidents like these is significant. See United

States v. Bader, 698 F.2d 553, 555 (1st Cir. 1983) (“It is well established that the

need to safeguard the normal functioning of public facilities is a ‘substantial

government interest’ . . . .”); United States v. Shiel, 611 F.2d 526, 528 (4th Cir. 1979)

(“The legitimacy of the government’s interest, in the abstract, of insuring the

public’s compliance while in or on government property with proper directions of

law enforcement officers . . . [is] apparent.”); cf. In re Neagle, 135 U.S. 1, 59 (1890).

Plaintiffs argue that the public interest weighs against issuing a stay because

permitting the use of the National Guard here would upset the constitutional balance

of power between federal and state government. While we recognize that significant

interests of Plaintiffs are implicated here, Plaintiffs’ argument is, in essence, a merits

argument that we have already resolved. The Constitution assigns the power to

“call[] forth the Militia” to Congress, and Congress has delegated portions of that

power to the President. U.S. CONST. art. I, § 8, cl. 15. As discussed, under the facts

before us, we disagree that Defendants have clearly exceeded the scope of their

statutory authority, so they are acting in accordance with the constitutional federal-

state balance.

36 Expressing concern about what they describe as “defendants’ nearly limitless

conception of Section 12406,” Plaintiffs argue that this case “marks the first time

that a President has invoked Section 12406 to order troops to patrol the streets of a

major American city in support of routine civil law enforcement activities—while

civil law enforcement officials at the local, state, and federal level all remain

available and are doing that work.” We emphasize, however, that our decision

addresses only the facts before us. And although we hold that the President likely

has authority to federalize the National Guard, nothing in our decision addresses the

nature of the activities in which the federalized National Guard may engage. Before

the district court, Plaintiffs argued that certain uses of the National Guard would

violate the Posse Comitatus Act, 18 U.S.C. § 1385. The district court found that

claim to be premature, and Plaintiffs have not renewed it before us. We express no

opinion on it.

Plaintiffs also urge that the public interest is in their favor because the

“continued presence of National Guard members” in Los Angeles “risks worsening,

not improving, tensions on the ground” and the federalization of the National Guard

“impairs the Guard’s ability to perform critical functions for the State,” including

support for fighting forest fires and combatting drug trafficking. These concerns are

counterbalanced by the undisputed fact that federal property has been damaged and

federal employees have been injured, and the evidence presented in the TRO hearing

37 showed that the federalized National Guard members were engaged only in

protecting federal personnel and property. Additionally, at least with respect to the

issues presented here, Plaintiffs’ concerns have more bearing on the question of

whether the President should have federalized the California National Guard, not

whether he had the authority to do so under § 12406. We also note that California’s

concerns about escalation and interference with local law enforcement, at present,

are too speculative. We do not know whether future protests will grow due to the

deployment of the National Guard. Cf. Murthy v. Missouri, 603 U.S. 43, 72 (2024)

(“In these circumstances, [Plaintiffs] cannot rely on ‘the predictable effect of

Government action on the decisions of third parties’; rather, [they] can only

‘speculat[e] about the decisions of third parties.’” (third alteration in original)

(quoting Dep’t of Com. v. New York, 588 U.S. 752, 768 (2019))). And we do not

know what emergencies may occur in California while the National Guard is

deployed. Accordingly, at this time and on these facts, the remaining stay factors

weigh in favor of Defendants.

V. CONCLUSION

For the reasons above, we GRANT Defendants’ motion for a stay pending

appeal.