The Ninth Circuit Court of Appeals has denied a request to rehear a case that has raised significant questions about the President’s authority to deploy the National Guard in American cities. The case, *Newsom v. Trump*, involves a dispute over the deployment of the California National Guard to Los Angeles in response to protests. The court’s decision, and the dissenting opinions, highlight the potential for the President to overstep his authority and the importance of judicial oversight in safeguarding the balance of power.
The Heart of the Matter: Presidential Power and the Military
The core issue in this case is the scope of the President’s power to use the military within the United States, specifically the authority to deploy the National Guard. The Constitution grants Congress the power to provide for calling forth the militia, but Congress has, through various laws, delegated some of this authority to the President. The specific statute at the center of this case, 10 U.S.C. § 12406(3), allows the President to call the National Guard into federal service when he “is unable with the regular forces to execute the laws of the United States.”
The dissenting judges expressed serious concerns that the panel’s decision gave the President too much leeway in determining when this condition is met. Judge Berzon, in her statement regarding the denial of rehearing, argued that the panel’s ruling essentially defers to the President’s judgment, as long as his assessment of the situation “reflects a colorable assessment of the facts and law within a range of honest judgment.” She and Judge Gould, in his dissent, believe this sets a dangerous precedent, potentially allowing the President to deploy troops in response to relatively minor disturbances, thus undermining the traditional role of local and federal law enforcement.
The Dissenting Arguments: A Clash of Ideals
The dissenting judges emphasized the historical context and the potential consequences of the panel’s decision. They pointed out the long-standing American aversion to military involvement in domestic law enforcement, tracing back to the use of British troops before the American Revolution. The Framers, they argued, intended the use of the military in such situations to be a last resort, only invoked in the most dire circumstances.
The dissenters argued that the panel’s interpretation of the statute contradicted its plain language and legislative history. They contended that the statute requires a showing of significant incapacity to enforce the law with regular forces, not merely a situation where enforcement becomes more difficult. They also criticized the panel’s reliance on *Martin v. Mott*, a Supreme Court case from 1827, arguing that it does not apply to the current statute and that it has been misinterpreted.
Judge Gould expressed particular concern that the panel’s decision could lead to a normalization of military deployments in response to civilian protests, which could undermine democratic ideals. He noted that the President had already ordered the deployment of troops in other cities and that there were threats of more deployments to come.
The Facts of the Case: Protests in Los Angeles
The case arose from protests in Los Angeles in June 2025. According to Judge Berzon’s statement, the protests were related to Immigration and Customs Enforcement (ICE) operations, including arrests and detentions. While there was some disruption, the dissenting judges emphasized that the events were relatively short-lived and that local and federal law enforcement agencies were present and in control.
The President, however, issued a memorandum authorizing the federalization of the California National Guard under 10 U.S.C. § 12406. Over the next few days, thousands of National Guard members were deployed to Los Angeles.
Broader Implications and the Role of the Judiciary
The *Newsom v. Trump* case has broader implications for the balance of power between the executive branch and the judiciary. The dissenting judges argued that the panel’s decision undermined the court’s responsibility to interpret and apply the law independently of the political branches. They emphasized that judicial review is essential to ensure that the President acts within the limits of his authority, particularly when it comes to the use of military force.
The case also raises questions about federalism, the division of power between the federal government and the states. The dissenters argued that the panel’s decision could erode the traditional role of state and local authorities in maintaining order and protecting the liberties of individuals.
The denial of rehearing en banc means that the panel’s decision stands, at least for now. However, Judge Berzon indicated that the panel may revisit its position on the deference due the President when it addresses the merits of the President’s appeal. The case also has the potential to influence courts across the country. The dissenting judges expressed the hope that the court would ultimately recognize the importance of strict statutory limits on the President’s power to deploy the military within the United States, protecting the rule of law and the fundamental principles of American democracy.