Friday, October 24, 2025
Page 3
Judges Decry Rehearing Denial Over Trump’s Troop Rollout
Eleven Ninth Circuit Jurists Join in Statement Criticizing Order Denying En Banc Rehearing of Decision That Stayed, Pending Appeal, Order Enjoining Deployment of National Guard Members to Los Angeles
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals has denied a request for an en banc rehearing of a June panel decision ordering that a temporary restraining order barring further deployment by the executive branch of National Guard troops to Los Angeles be stayed pending appeal, drawing a “statement,” signed by eleven judges, criticizing the court’s decision not to intervene.
At issue is the June 19 per curiam opinion, signed by Circuit Judges Mark J. Bennett, Eric D. Miller, and Jennifer Sung, granting the federal government’s request to halt enforcement of an order issued by Senior District Court Judge Charles R. Breyer of the Northern District of California seven days earlier. Bennett and Miller are Trump appointees; Sung was placed on the court by then-President Joe Biden.
That order was issued after Gov. Gavin Newsom filed a complaint on June 9 for declaratory and injunctive relief against President Donald Trump, the Department of Defense, and Defense Secretary Pete Hegseth.
Federalization of National Guard
In the pleading, the governor alleged that the executive branch acted beyond the scope of its constitutional authority in federalizing the California National Guard to assist with protecting federal buildings and immigration officials in the wake of a series of Los Angeles riots relating to deportation raids. The challenged action was a June 7 memorandum, signed by the president, saying:
“In light of…credible threats of continued violence, by the authority vested in me as President…, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other…personnel who are performing Federal functions…and to protect Federal property….”
On June 12, Breyer granted Newsom’s request for a temporary restraining order, declaring that “Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles” and that they are “DIRECTED to return control of the California National Guard to Governor Newsom.”
Breyer, the brother of the former U.S. Supreme Court Justice Stephen Breyer, was appointed to the court by then- President Bill Clinton, a Democrat.
Stay Granted
The federal government immediately filed a notice of appeal and moved for an emergency stay. Bennett, Miller, and Sung reasoned that the order was appealable as it possessed the qualities of a preliminary injunction and granted the stay, saying:
“[W]e are persuaded that, under longstanding precedent…, our review…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)….”
Senior Circuit Judge Marsha S. Berzon, who is prevented from voting on motions by virtue of her senior status, authored a statement to accompany Wednesday’s denial of en banc review. She wrote:
“Hearing a case concerning a stay motion en banc is assuredly unusual. It may well be that those active judges who did not vote to hear this case en banc now are awaiting the merits opinion….But I…think that the President’s disregard for this country’s deep-seated commitment to the principle that armed forces must not be used as civil law enforcers except where there is no alternative should have been headed off now, not later. The panel opinion on the stay motion should have been reconsidered en banc.”
Chief Judge Mary H. Murguia and Circuit Judges Kim Wardlaw, Morgan Christen, Lucy H. Koh, Gabriel P. Sanchez, and Salvador Mendoza Jr., as well as Senior Circuit Judges William A. Fletcher, Richard A. Paez, and Andrew D. Hurwitz, all Democrat appointees, joined in the statement. Circuit Judge Ronald M. Gould, who was placed on the court by Clinton, joined in the opinion and penned a separate opinion dissenting from the denal of a rehearing.
Berzon’s View
Saying that “[t]his case presents an issue of the gravest consequence: the peacetime deployment of military troops in American cities,” Berzon wrote:
“In accord with the courts’ usual responsibility to interpret statutes and curb assertions of executive power inconsistent with statutory grants of authority,…the panel in this case should have considered whether the President was likely to succeed in showing that he complied with the very specific terms of the purely statutory grant of authority when he ordered the California National Guard onto the streets of Los Angeles over the objection of state authorities. Absent judicial insistence on compliance with strict statutory limits on the use of the military for domestic purposes, this country could devolve into one in which the use of military force displaces the rule of law, principles of federalism, and the federal separation of powers….”
The jurist disagreed that extraordinary judicial deference is owed to a decision to federalize the National Guard under §12406(3), which provides that “the President may call” such troops from any state into “Federal service” if he is “unable with the regular forces to execute the laws of the United States.”
She said that “[t]he statutory text gives no indication whatever that Congress intended to curtail ordinary judicial review of executive action” and that the cases relied on by the panel, each decided in the 1800s, preceded the enactment of §12406.
Judicial Deference
Under those circumstances, she concluded:
“Even if [those cases] did, when decided, stand for extreme judicial deference to the President’s invocation of his power to deploy state forces for federal law enforcement purposes—which, for the many reasons surveyed, they did not—fundamental doctrinal developments in the more than 150 years since those cases were decided have displaced any such exaltation of executive authority over judicial responsibility.”
Looking to the terms of the statute, she remarked:
“A situation does not render the President ‘unable’ to enforce the law simply because it makes enforcing the law more difficult….We assume that Congress means what it says. Before the President can send in the National Guard under § 12406(3), circumstances must be severe enough to make him ‘incapable’ of enforcing the law.”
Finding that requirement unmet, Berzon opined:
“Regrettably, it is often the case that a small subset of individuals take advantage of protests to engage in violence or property damage….Such transient violence should not be sufficient to transform regular demonstrations into national emergencies justifying federal military intervention, with armed troops patrolling cities for weeks or months.”
She acknowledged that “[t]he panel may have an opportunity to revisit its preliminary stance on the deference due the President…when it addresses the merits of the President’s appeal,” but argued that “given the recent and ongoing rash of deployments of National Guard troops to city streets in response to localized protests, based on unsupported assertions about crime and disorder, this court should have addressed the legal principles…now, not later.”
Gould’s Dissent
Gould said that “I join in full Judge Berzon’s well-reasoned dissent and write separately to express my additional perspectives on this important case.” He commented:
“Under the panel’s decision in this case, when the President determines that…§12406(3)’s statutory preconditions have been met, this exercise of Presidential power will be upheld so long as it ‘reflects a colorable assessment of the facts and law within a range of honest judgment.’…This ill-considered rule in our Circuit gives the President an almost unfettered ability to deploy American troops into our cities. Under this rule, it is difficult for me to conceive of a likely situation in which a court could determine a President did not meet this unprecedented and extremely deferential standard.”
Saying in a footnote that readers “may wish to listen” to the Crosby, Stills, Nash & Young song “Ohio” for background, and including a YouTube link to a rendition of the tune, he noted the “tragedy occurring at Kent State University in 1970” after students were shot and killed by National Guards members sent by the executive branch to quell protests over then-President Nixon’s decision to invade Cambodia during the Vietnam War. He wrote:
“Using military force to quell predominantly peaceful public protests as a first rather than a last resort may cause dissatisfaction of the citizenry and provoke civil unrest. To have an armed military faced off against civilian protesters, whatever the motivation of the President, threatens to produce another tragedy….”
He added:
“The democratic ideals our nation has consistently promoted for the last quarter millennium will be gravely undercut by allowing military force and weapons of war to be deployed against American citizens on U.S. soil on the flimsy grounds asserted here for this use of Executive power. Because our Court should have imposed real limits on the statutory presidential power at issue here, I dissent from the denial of rehearing en banc.”
The case is Newsom v. Trump, 25-3727.
Copyright 2025, Metropolitan News Company