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For those following the legal battle over the scope of Presidential authority to intervene in local civil disturbances, and the manner in which that may be attempted (Newsom v. Trump NO. 3:25-cv-04870-CRB (N.D.Cal.)), the 9th Circuit US Court of Appeals heard argument on 17 June 2025, on the President's challenge to the granting of a temporary restraining order against federal interference in the management of local civil disturbances in Los Angeles (Order Granting Plaintiffs' Application for Temporary Restraining Order). The federal appellate Court issued its opinion on 19 June 2025 (Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)), granting the stay of the TRO, which was described in this way in press reporting:
A federal appeals court on Thursday cleared the way for President Trump to keep using the National Guard to respond to immigration protests in Los Angeles, declaring that a judge in San Francisco erred last week when he ordered Mr. Trump to return control of the troops to Gov. Gavin Newsom of California. In a unanimous, 38-page ruling, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the conditions in Los Angeles were sufficient for Mr. Trump to decide that he needed to take federal control of California’s National Guard and deploy it to ensure that federal immigration laws would be enforced. * * * Mr. Trump praised the decision, saying in a Truth Social post late Thursday that it supported his argument for using the National Guard “all over the United States” if local law enforcement can’t “get the job done.” Mr. Newsom, in a response on Thursday, focused on how the appeals court had rejected the Trump administration’s argument that a president’s decision to federalize the National Guard could not be reviewed by a judge.(NYT here)
As described in the reporting, there appeared to be a little positive for all actors in this litigation. The Opinion did a nice job of describing itself:
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. (Newson v. Trump, supra, slip op. at 2-3).
This does not resolve the case, of course. It merely denies protection pending the resolution of the merits of the case before the district court, subject to appeal. But the resolution of the TRO, given its standard of review, does provide the district court whose order was stayed, and the parties, with a substantial amount of "instruction" about the way that the appellate panel views the case and the law. It is likely that this will affect litigation strategy with respect to the development of evidence and of its presentation in narrative made compelling under a specific interpretive reading of both (1) the substance of the statutory authority invoked; and (2) the issue around intent (and the continually developing jurisprudence of (at least Presidential) abuse of discretionary authority.
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That last point, perhaps is among the most lasting from this litigation. And one other--the determination by the court that it has at least some authority to hear the case and review presidential action. That is critical with respect to the interpretation of both the scope of constitutional and statutory authority that serves as a basis for Presidential action (see, e.g., slip op. at 28-30). More broadly the court also reserved to itself (as it must one would think) a role in the determination of whether the exercise of discretion in invoking an authority to act, and the way that this authority is actually deployed, "exceeded the scope" of authority--effectively built around notions of abuse of authority. "A simple definition of the abuse of power is the misuse of a position of power to take unjust advantage of individuals, organizations, or governments. . . The common element of these crimes is deceit." (here).
In this latter sense, one might perhaps be inclined to consider the extent to which the opinion appears to contribute to a principle now hardening, that is grounded on the presumption that all administrative discretionary action is reviewable by the courts, that this presumption may be set aside in very few areas (which future litigation will refine), that review of discretionary decisions are subject to a highly deferential standard, but that evidence of bad intent can overcome that deferential standard, especially where the intent has no relation to the exercise of authority (e.g., to punish political enemies, to advance personal advantage, corruption, etc. again to be refined by the courts in case specific context) but possibly grouped together around an "exceeded the scope of their statutory authority" standard (see, eg slip op. at 36). Interesting as well is the effective embrace of a well worn juridical principle that not all defects in process compliance are fatal (slip op., pp. 30-35).
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The full text of the appellate court opinion may be accessed HERE.
Access
Part 4: Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)
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