Ninth Circuit National Guard Ruling: LA Deployment Unlawful

In a Ninth Circuit National Guard ruling issued Oct. 23, a divided three-judge panel held that President Trump acted unlawfully when he federalized 4,000 California National Guard members in June 2025 to protect federal personnel and property during protests over immigration enforcement in Los Angeles. The panel affirmed the order that barred the deployment and returned control of the troops to Gov. Gavin Newsom, and it refused the Justice Department’s request to drop the appeal, so the decision now stands as binding precedent for federal courts in nine Western states.

Nothing changes on the streets of Los Angeles. Federal control of the Guard ended at the close of 2025, after the same court lifted its stay of the trial judge’s order, according to statements from Newsom’s office and Sen. Alex Padilla. The ruling matters for what comes next, as immigration enforcement surges draw protests in other cities. The panel kept the case alive for that reason, saying a decision could still prevent a future federalization and pointing to the President’s statement that the Guard would “come back” in a “stronger form.”

The two legal tests the deployment failed

The President relied on 10 U.S.C. 12406, which allows him to call a state’s Guard into federal service in cases of invasion, rebellion or danger of rebellion, or when he is “unable with the regular forces to execute the laws.” Judge Jennifer Sung, joined by Judge Eric Miller, rejected the two grounds the government invoked.

On the “regular forces” clause, the panel applied the Supreme Court’s December 2025 decision in Trump v. Illinois, which requires the government to show it has legal authority to execute the laws with the regular military and is unable to do so. The government made neither showing, the panel held. It also rejected the argument that the President’s implied power to protect federal officers and buildings supplies the express authorization the Posse Comitatus Act demands before troops can carry out civilian law enforcement.

On rebellion, the court adopted the trial judge’s definition: a violent, armed, organized, open and avowed uprising against the government as a whole. It held that California is likely to show the President’s June 7, 2025 determination that Los Angeles met that description was not “a colorable assessment of the facts and law within a ‘range of honest judgment.'” Review is highly deferential, the panel said, but the President’s finding is reviewable and is measured against facts a court finds, not the government’s assertions. With neither ground available, the order exceeded the President’s statutory power and violated the separation of powers.

The administration’s position, as the opinion describes it, was that the President’s exigency determination cannot be reviewed by courts at all and that protecting federal personnel and property is itself a lawful basis for military support. California Attorney General Rob Bonta, in a statement released by the governor’s office, called the deployment “a clear example of federal overreach.”

A precedent the government tried to avoid

Appeals courts routinely let a party withdraw its own appeal. In a separate order, this panel declined: the case was fully briefed and argued, an opinion was being drafted, and the government had not abandoned its legal positions, so dismissal could let it sidestep an unfavorable precedent. Judge Mark Bennett dissented from that refusal and from the merits ruling, arguing that changing course after an intervening Supreme Court decision is legitimate, that California would lose nothing because the order stays in place, and that the court should not reach novel constitutional questions on thin briefing.

The government’s attempt to retreat thus produced a published opinion that binds federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

What it means for troops at immigration operations

The ruling narrows one tool without touching the agencies themselves. ICE’s arrest and detention authority is not at issue, and nothing in the opinion stops DHS from sending more federal agents into a city. What it limits is using a governor’s Guard troops to protect those operations under Section 12406. Within the Ninth Circuit, a President would have to show either a genuine rebellion under the court’s demanding definition or that the regular military could lawfully do the job and could not. On the panel’s reasoning, protests against immigration arrests, including ones that turn violent, would rarely meet that definition.

The open question is the Insurrection Act, a separate statute that the opinion contrasts with Section 12406 because it expressly authorizes using the forces it calls up. That law was not the basis for the Los Angeles order, and the panel did not decide how it would apply.

The government can ask the full Ninth Circuit to rehear the case or petition the Supreme Court. Because Trump v. Illinois already settled the “regular forces” question, the rebellion holding and the reviewability standard are the likeliest targets. The case joins other disputes over federal power around immigration enforcement, from limits on warrantless immigration arrests in Washington, D.C. to a county’s suit to keep armed federal agents away from polling places and Minnesota’s investigation of fatal shootings by federal officers.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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