9th Circuit Issues Stay Pending Appeal in CA National Guard Case, Handing Trump a Big Win
Well, this is likely to ruin California Governor Gavin Newsom's evening: The 9th Circuit Court of Appeals has issued its ruling on the Trump administration's motion for a stay pending appeal. The court granted the motion, meaning the National Guard may remain under federal control for the time being.
Shortly after President Trump issued orders federalizing the Guard in response to riots that broke out in and around Los Angeles, ostensibly following protests of immigration raids in the area, Newsom filed suit in federal court to block the move. Of note, he filed the suit in the Northern District of California rather than in the Central District, which serves Los Angeles. Judge Charles Breyer then issued a temporary restraining order (TRO) ordering the return of control of the Guard to the state.
Within hours of that ruling, however, a three-judge panel at the 9th Circuit Court of Appeals issued an administrative (temporary) stay in response to the administration's appeal.
Oral argument was heard before the 9th Circuit on Tuesday afternoon. Now, they've permanently stayed the district court's TRO pending the appeal of the case. In doing so, the court observed:
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 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.
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