An appellate panel heard arguments Tuesday but made no ruling on whether President Donald Trump or California Gov. Gavin Newsom will control the state's National Guard -- a hearing stemming from a challenge to Trump's decision to federalize the Guard, which a San Francisco federal judge ruled last week was illegal and unconstitutional.
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During the hour-long hearing before the 9th U.S. Circuit Court of Appeals, attorneys for Trump and Newsom sparred over Trump's executive order to call up 2,000 Cal Guard members to the streets of downtown Los Angeles, ostensibly to protect immigration officers and federal property, for 60 days.
The hearing came after a lower court judge ruled Thursday that Trump's federalization of Guard service members did not follow congressionally mandated procedure, and Trump must return control of the troops to Newsom by noon the following day. But within hours, the appeals court granted Trump's emergency request to temporarily block the order, leaving the Guard under Trump's control, and set a hearing for Tuesday to contemplate Trump's request for a stay pending appeal.
The hearing in the James R. Browning U.S. Courthouse in downtown San Francisco was live-streamed on YouTube. The panel of three judges includes two Trump appointees.
The lower-court judge, U.S. District Judge Charles Breyer, had determined that the National Guard deployment was illegal and violated the Tenth Amendment, which defines power between federal and state governments, and exceeded Trump's statutory authority. The judge's order applied only to the National Guard troops and not 700 active-duty U.S. Marines who were also deployed to the Los Angeles protests. The judge said he would not rule on the Marines because they were not out on the streets as of Thursday.
Since the appellate panel did not rule to restore the Guard to Newsom's control, another hearing before Breyer is expected Friday, when the judge may decide whether to impose a longer block on Trump's federalization of the Guard.
At Tuesday's hearing, Samuel Harbourt, an attorney for California's Department of Justice, asked the three-judge panel to reject the federal government's motion for a stay "because every day that the stay remains in effect, it causes two principle forms of irreparable harm."
First, Harbourt argued, the federalization of one-third of the state's Guard personnel keep troops from being ready to respond for emergencies, "especially wildfires, which is especially problematic as we enter the peak of wildfire season, which experts believe is likely to be especially harmful and severe this year."
Secondly, the attorney said, Trump's order is causing harm "to our nation's broader democratic tradition of separation of the military from civilian affairs," and control of the troops should be restored to Newsom.
Although the deployment order is for 60 days, Harbourt warned that Defense Secretary Pete Hegseth could extend that time period.
In his argument for a stay leaving Trump in control of the state's National Guard, Assistant Attorney General Brett Shumate of the U.S. Department of Justice, said Breyer's ruling was poorly considered.
The judge's decision not only "interferes" with law and order, but it puts judges "on a collision course with the commander in chief."
The demonstrations in downtown Los Angeles last weekend were out of the ordinary, Shumate said, adding that U.S. Immigration and Customs Enforcement agents faced dangers "from mob violence" that local law enforcement could not stop.
"There are facts on the record here that strongly support the president's decision," Shumate argued.
He said the violence in the streets amounted to a "rebellion" and in Trump's judgment, the regular forces on the ground in Los Angeles "were unable to enforce the law" and ICE officers were prevented from making arrests on Friday.
Judge Eric Miller, who had been nominated to the court by Trump, posited that it was possible that Trump's decision was due to "dissatisfaction" with the number of arrests made by ICE.
Shumate said that the military troops were deployed to Los Angeles on "a protective mission," not direct law enforcement.
Ultimately, the DOJ attorney said, the president is allowed to supplant the governor's authority and call forth the National Guard if he determines it necessary. Trump made a lawful determination that he was unable to enforce the law due to civil unrest targeting federal law enforcement officials, Shumate said.
It was not known when the panel might make a ruling on the case, but it is assumed it would come sometime after Friday's hearing before Breyer in San Francisco federal court.
Breyer had determined that the National Guard deployment was illegal and violated the Tenth Amendment, which defines power between federal and state governments, and exceeded Trump's statutory authority.
Newsom had praised the earlier ruling, saying Breyer's decision "was really about a test of democracy, and today we passed the test." But that was before the appeals court spoke.
In a post on his Truth Social platform Friday, Trump thanked the appellate panel for leaving him in control of the troops.
"If I didn't send the Military into Los Angeles, that city would be burning to the ground right now," he said.
The authority to call up the National Guard normally lies with state governors, but there are limited circumstances under which the president can deploy the troops. Trump federalized members of the California National Guard under an authority known as Title 10, which allows the president to call the Guard into federal service when the country is "invaded" or faces a "rebellion" against the authority of the government.
The hearing Thursday before Breyer stemmed from a lawsuit brought June 9 by Newsom and state Attorney General Rob Bonta following Trump's deployment of military forces in the Los Angeles area.
"The federal government is now turning the military against American citizens," Newsom said in a statement after filing the lawsuit in San Francisco. "Sending trained warfighters onto the streets is unprecedented and threatens the very core of our democracy. Donald Trump is behaving like a tyrant, not a President. We ask the court to immediately block these unlawful actions."
The state's suit names Trump, Defense Secretary Pete Hegseth and the U.S. Department of Defense as defendants, alleging violations of the U.S. Constitution and the president's authority, not only because the takeover occurred without the consent or input of the governor, as federal law requires, but also because, Newsom said, it was unwarranted.
A U.S. Department of Justice spokesperson did not respond to a request for comment on the litigation.
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