The U.S. Court of Appeals for the Ninth Circuit has denied en banc rehearing in Newsom v. Trump, effectively upholding the earlier panel decision that sided with Trump and affirmed his authority to federalize the California National Guard to support federal immigration enforcement.
When California officials refused to cooperate with federal agents, Trump invoked § 12406(3), federalizing and deploying 4,000 members of the California National Guard to Los Angeles to secure ICE facilities and restore order.
California Governor Gavin Newsom and the State of California sued over President Trump’s order, claiming it was unconstitutional and violated state sovereignty.
Newsom wrote at the time:
“We are suing Donald Trump. This is a manufactured crisis. He is creating fear and terror to take over a state militia and violate the U.S. constitution. The illegal order he signed could allow him to send the military into ANY STATE HE WISHES. Every governor — red or blue — should reject this outrageous overreach. There’s a lot of hyperbole out there. This isn’t that. This is an unmistakable step toward authoritarianism that threatens the foundation of our republic. We cannot let it stand.”
NEW: We are suing Donald Trump.
This is a manufactured crisis. He is creating fear and terror to take over a state militia and violate the U.S. constitution.
The illegal order he signed could allow him to send the military into ANY STATE HE WISHES.
Every governor — red or…
— Gavin Newsom (@GavinNewsom) June 9, 2025
US District Judge Charles Breyer (brother of retired SCOTUS Breyer), a Clinton appointee, granted Newsom a Temporary Restraining Order (TRO) and said Trump’s decision to federalize the National Guard was illegal.
But the appellate panel ruled that the statute clearly empowers the President to act whenever he is “unable with the regular forces to execute the laws of the United States.”
In practical terms, this means the Commander-in-Chief may call Guard troops into federal service when local or federal law-enforcement personnel cannot safely or effectively enforce the law.
After Senior Judge Marsha S. Berzon, joined by several liberal colleagues, requested a full-court rehearing, a vote of active Ninth Circuit judges failed to secure a majority, and rehearing en banc was denied on Wednesday. That denial makes the earlier Trump victory final within the circuit and binding precedent across nine Western states.
Judge Marsha Berzon’s 38-page dissent argued that the ruling “invited presidents, now and in the future, to deploy military troops… in response to commonplace, short-lived, domestic disturbances.”
Another dissenter, Judge Ronald Gould, fretted that Trump’s authority under the ruling was “almost unfettered,” dramatically warning of “profound consequences destructive to American society” and cautioning that it could lead to another tragedy like the one at Kent State University in 1970.
Yet the majority refused to rehear the case, leaving intact the panel’s decision that Trump acted within the law and that courts must afford wide latitude to the President’s factual determinations when executing federal statutes involving national defense and law enforcement.
Read the ruling below:
