The 9th Circuit Court of Appeals issued a stay of the District Court injunction undoing Trump’s federalization of the California National Guard after riots and attacks on federal ICE agents enforcing federal immigratin laws.
While technically only putting a hold pending appeal on the injunction, the 9th Circuit unanimous three-judge ruling was highly substantive and dismissive on the merits of Gov. Gavin Newsom’s arguments.
From the Appeal Court ruling:
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 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.
The Appeals Court found that it had the power to review the federalization of the National Guard, but under a “highly deferential” standard:
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.
Getting the first and most important test for an injunction — likelihood of success on the merits — the Appeals Court ruled that Trump was likely to win on the merits:
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.” ….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 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).
As to the argument that federalization had to be issued “through” the Governor under the statute, the court ruled that Trump had passed that threshold:
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 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.”)….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’sauthority under § 12406 and does not justify the current scope of the injunction imposed by the district court.5
Finally, the Appeals Court found that the balancing of the equities favored Trump:
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 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.
Considering how long appeals normally take, a “stay pending appeal” could last months, even if Newsom tries to expedite the appeal. He could try to get an full 9th Circuit “en banc” review, or any appeals court judge could request such review, but there’s no reason to think he will be successful on the merits, and even then that will take time and would be subject to Supreme Court review.
So Newsom took a big loss here, but you wouldn’t know it from his reaction:
Just take the L, man.
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