A federal appeals court Thursday delayed an order requiring the Trump administration to return control of the California National Guard to Gov. Gavin Newsom.
A panel of three judges on the Ninth Circuit Court of Appeals issued an administrative stay of the lower court’s order and set a hearing for June 17.
Two of the judges on the panel were nominated by President Donald Trump, and one was nominated by former President Joe Biden.
Earlier Thursday, a federal judge in California issued a temporary restraining order that would have blocked Trump’s move to deploy California National Guard troops during protests over immigration raids in Los Angeles and returned control of the California National Guard to Gov. Gavin Newsom.
Calling the judge’s order “unprecedented” and an “extraordinary intrusion on the President’s constitutional authority as Commander in Chief,” lawyers for the Trump administration filed an emergency motion with the Ninth Circuit Court of Appeals.
Before being paused by the appeals court, the lower court judge’s order, which did not limit Trump’s use of the Marines, was set to take effect at noon on Friday.
“At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not,” U.S. District Judge Charles Breyer said in his order granting the temporary restraining order sought by Newsom. “His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
President Donald Trump in the Oval Office in Washington, June 10, 2025 and California Gov. Gavin Newsom speaks during an address, June 10, 2025.
Getty Images/AP
In a press conference after the earlier order, Newsom said he was “gratified” by the judge’s ruling, saying he would return the National Guard “to what they were doing before Donald Trump commandeered them,” Newsom said.
“The National Guard will go back to border security, working on counter drug enforcement and fentanyl enforcement, which they were taken off by Donald Trump. The National Guard will go back to working on what we refer to as the rattlesnake teams, doing vegetation and forest management, which Donald Trump took them off in preparation for wildfire season. The National Guard men and women will go back to their day jobs, which include law enforcement,” Newsom’s speech continued.
Newsom and Attorney General Rob Bonta had filed an emergency request on Tuesday to block what they called Trump and the Department of Defense’s “unnecessary” and “unlawful militarization” after Trump issued a memorandum over the weekend deploying more than 2,000 National Guard troops to Los Angeles amid the protests — over objections from Newsom and other state and local officials.
What the lower court judge said in his order
In his order, Breyer pointed to protesters’ First Amendment rights and said, “Just because some stray bad actors go too far does not wipe out that right for everyone. The idea that protesters can so quickly cross the line between protected conduct and ‘rebellion against the authority of the Government of the United States’ is untenable and dangerous,” he wrote.
Breyer wrote that the protests in Los Angeles “fall far short” of the legal requirements of a “rebellion” to justify a federal deployment. Rebellions need to be armed, violent, organized, open, and aim to overturn a government, he wrote. The protests in California meet none of those conditions, he found.
“Plaintiffs 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,” the judge wrote in his order.
“Regardless of the outcome of this case or any other, that alone threatens serious injury to the constitutional balance of power between the federal and state governments, and it sets a dangerous precedent for future domestic military activity,” the judge wrote.
Some 4,000 National Guardsmen and 700 Marines were ordered to the Los Angeles area following protests over immigration raids. California leaders claim Trump inflamed the protests by sending in the military when it was not necessary.
Protests have since spread to other cities, including Boston, Chicago and Seattle.
To send thousands of National Guardsmen to Los Angeles, Trump invoked Section 12406 of Title 10 of the U.S. Code on Armed Services, which allows a federal deployment in response to a “rebellion or danger of a rebellion against the authority of the Government of the United States.” In his order, Trump said the troops would protect federal property and federal personnel who are performing their functions.
The judge did not decide whether the military’s possible involvement in immigration enforcement — by being present with ICE agents during raids — violates the 1878 Posse Comitatus Act, which bars the military from performing civilian law enforcement. The judge said he would hear additional arguments on that point at a hearing next week.
During a court hearing earlier Thursday, Breyer said during Thursday’s 70-minute hearing that the main issue before him was whether the president complied with the Title 10 statute and that the National Guard was “properly federalized.”
The federal government maintained that the president did comply while also arguing that the statute is not justiciable and the president has complete discretion. The judge was asked not to issue an injunction that would “countermand the president’s military judgments.”
Meanwhile, the attorney on behalf of the state of California and Newsom said their position is that the National Guard was not lawfully federalized, and that the president deploying troops in the streets of a civilian city in response to perceived disobedience was an “expansive, dangerous conception of federal executive power.”
Bonta additionally argued in the emergency filing that Trump failed to meet the legal requirements for such a federal deployment.
“To put it bluntly, there is no invasion or rebellion in Los Angeles; there is civil unrest that is no different from episodes that regularly occur in communities throughout the country, and that is capable of being contained by state and local authorities working together,” Bonta wrote.
Breyer had earlier declined California’s request to issue a temporary restraining order immediately and instead set the hearing for Thursday afternoon in San Francisco and gave the Trump administration the time they requested to file a response.
In their response, Department of Justice lawyers asked the judge to deny Newsom’s request for a temporary restraining order that would limit the military to protecting federal buildings, arguing such an order would amount to a “rioters’ veto to enforcement of federal law.”
“The extraordinary relief Plaintiffs request would judicially countermand the Commander in Chief’s military directives — and would do so in the posture of a temporary restraining order, no less. That would be unprecedented. It would be constitutionally anathema. And it would be dangerous,” they wrote.
They also argued California should not “second-guess the President’s judgment that federal reinforcements were necessary” and that a federal court should defer to the president’s discretion on military matters.
California National Guard are positioned at the Federal Building on Tuesday, June 11, 2025, in downtown Los Angeles.
Eric Thayer/AP
Trump on Tuesday defended his decision to send in the National Guard and Marines, saying the situation in LA was “out of control.”
“All I want is safety. I just want a safe area,” he told reporters. “Los Angeles was under siege until we got there. The police were unable to handle it.”
Trump went on to suggest that he sent in the National Guard and the Marines to send a message to other cities not to interfere with ICE operations or they will be met with equal or greater force.
“If we didn’t attack this one very strongly, you’d have them all over the country,” he said. “But I can inform the rest of the country that when they do it, if they do it, they’re going to be met with equal or greater force than we met right here.”
ABC News’ Jeffrey Cook and Peter Charalambous, Alyssa Pone and Alexandra Hutzler contributed to this report.
