Key Points

  • The Ninth Circuit affirmed Judge Breyer's order barring deployment of the federalized California National Guard in Los Angeles and returning control of the Guard to Gov. Newsom.
  • Applying Trump v. Illinois, the panel held that the government failed to show the president had legal authority to execute the laws with the regular military and was unable to do so, so 10 U.S.C. § 12406(3) did not authorize the June 7, 2025, order.
  • The panel defined 'rebellion' under § 12406(2) as a violent, armed, organized, open and avowed uprising against the government as a whole, and held that the president's rebellion determination for Los Angeles was not a colorable assessment within a range of honest judgment.
  • In a companion order, the panel denied the government's Rule 42(b) motion to dismiss appeal No. 25-3727, holding that voluntary dismissal is discretionary, and granted dismissal of appeal No. 25-7781.
  • Judge Miller concurred, citing the government's forfeiture of the cause-of-action argument; Judge Bennett dissented from both rulings and would have found the Tenth Amendment claim unlikely to succeed.

A federal appeals court ruled on Oct. 23 that President Donald Trump exceeded his legal authority when he ordered 4,000 California National Guard members into federal service in June 2025, during protests over immigration raids in Los Angeles. The court held that the president could not reasonably have deemed the unrest a "rebellion" and that the government had not met conditions the Supreme Court set in 2025 for calling up the Guard to enforce federal law.

The divided Ninth Circuit panel affirmed a temporary restraining order by U.S. District Judge Charles R. Breyer of San Francisco that barred deployment of the Guard in Los Angeles and directed the government "to return control of the California National Guard to Governor Newsom." Judge Jennifer Sung wrote for the court, joined by Judge Eric D. Miller. Judge Mark J. Bennett dissented.

The published opinion sets binding circuit precedent on 10 U.S.C. § 12406, which lets the president federalize a state's Guard during an invasion, a rebellion or when he "is unable with the regular forces to execute the laws of the United States." Courts may review whether such an emergency exists, the panel held, asking at a minimum whether the president's finding reflects "a colorable assessment of the facts and law within a 'range of honest judgment.'"

The ruling came only after the panel, in a separate order the same day, refused the administration's January 2026 request to withdraw its appeal, which it filed after the Supreme Court ruled against it in Trump v. Illinois, an Illinois Guard case. "In the normal course, we routinely grant such motions. But granting such a motion is not mandatory," the unsigned order said. Judge Bennett dissented from that ruling too.

California and Gov. Gavin Newsom sued the president and Defense Secretary Peter Hegseth over the June 7, 2025, order. That June, the panel stayed Judge Breyer's order, finding the president likely acted lawfully under the "regular forces" clause. The Supreme Court later read that clause to require two showings: legal authority to execute the laws with the regular military, and inability to do so with those forces.

Judge Sung wrote that the government made neither showing. She rejected its arguments that § 12406 itself authorizes using troops to enforce the law and that the president's power to protect federal personnel exempts the mission from the Posse Comitatus Act, which generally bars using the military to execute the laws unless the Constitution or Congress expressly allows it. "By Defendants' own admission, this protective power is implied, not express," she wrote.

The panel also rejected the government's alternative claim of "a rebellion or danger of a rebellion." Relying on dictionaries from around 1903, when Congress added the word to the statute, it adopted Judge Breyer's definition: "a violent, armed, organized, open and avowed uprising against the government as a whole." The government had pressed the same theory in Illinois, the court noted, and the justices "evidently deemed the argument so lacking in merit as not to be worth mentioning."

Judge Breyer had found, without dispute on appeal, "no evidence of organized, as apart from sporadic or impromptu, violence," and that "the evidence is overwhelming that protesters gathered to protest a single issue—the immigration raids." Because the Guard members were never validly federalized, the panel added, they remained state personnel, and using them to help enforce federal law violated the Tenth Amendment's bar on commandeering state officers.

Judge Miller, concurring, wrote that the government forfeited "twice over" any argument that California lacked a right to bring an ultra vires claim, one alleging action beyond legal authority. "There is room to debate whether Murphy Co. is consistent with Supreme Court precedent," he wrote of a 2023 circuit ruling, but the panel was bound by it.

Judge Bennett called the question one "of tremendous consequence and national importance. But it is not a question that must—or should—be resolved by this panel today." He wrote that the majority "invents out of whole cloth" a category of constitutional claim to avoid strict limits on ultra vires suits, which the Supreme Court has likened to a Hail Mary pass. "In today's majority opinion, that Hail Mary pass scores," he wrote. He also doubted the Tenth Amendment holding.

In the dismissal order, the majority said the appeal was not moot even though the Guard is no longer deployed in Los Angeles, because that resulted from a separate injunction against extensions of the deployment. It cited a December 2025 post in which the president wrote, "[w]e will come back, perhaps in a much different and stronger form, when crime begins to soar again—Only a question of time!" The case had been argued, and the court had begun drafting an opinion.

"Defendants are in the unusual position of being able to fulfil their promise of recreating the conditions that led to this litigation whenever and wherever they choose," the order said. Dismissal, it said, "would allow Defendants to use Rule 42(b) to prevent the issuance of a decision by this panel when the interests of justice require that a decision be issued."

Judge Bennett, who saw "no signs of gamesmanship," pointed to the en banc court's dismissal of a similar appeal over the Oregon Guard. "There is nothing wrong or improper about changing one's litigation strategy based on intervening authority from the Supreme Court," he wrote.

The panel granted the government's motion to drop its unbriefed appeal of the extension injunction. A third appeal, over Judge Breyer's Posse Comitatus Act ruling, remains on hold. The case returns to Judge Breyer, and under circuit rules any later appeal in it goes to the same panel.

Samuel T. Harbourt of the California attorney general's office argued for the state. Eric D. McArthur of the Justice Department's Civil Division argued for the government.