Reported / Citable
Background
In early June 2025, federal immigration enforcement in Los Angeles prompted public demonstrations. In response, the President invoked 10 U.S.C. § 12406 to order 4,000 members of the California National Guard into federal service for 60 days to protect federal property and personnel. California and Governor Newsom sued. After a hearing, the district court issued a temporary restraining order barring Defendants from deploying the Guard in Los Angeles and directing them to return control of the Guard to the Governor.
Defendants appealed, and on June 19, 2025, the panel stayed that order, concluding the President likely acted within his authority under § 12406(3). After briefing and argument, the Supreme Court in Trump v. Illinois denied a stay in a similar case, reasoning that the President likely may not federalize the Guard under § 12406(3) without showing legal authority to execute the laws with the regular military and an inability to do so with those forces. Because the restraining order possessed the qualities of a preliminary injunction, the panel treated it as appealable. Separate appeals concerning a later Posse Comitatus Act injunction and an injunction against extension orders were not decided here.
The Court’s Holding
The panel affirmed, holding that Plaintiffs are likely to succeed on their claim that the June 2025 federalization order exceeded the President's statutory authority. It reaffirmed that whether a § 12406 exigency exists is reviewable, though the review is highly deferential and asks at minimum whether the determination reflects a colorable assessment of the facts and law within a range of honest judgment. Treating Illinois as binding, it held that Defendants identified no source of authority allowing the regular military to execute the laws in California: § 12406 authorizes calling the Guard into federal service, not using the military, and the President's asserted protective power under the Take Care Clause is implied rather than express, so it supplies no exception to the Posse Comitatus Act.
On § 12406(2), the panel read “rebellion” as a violent, armed, organized, open uprising against the government as a whole. The district court's unchallenged findings showed mostly peaceful protests, serious but sporadic violence by some individuals, no evidence of organized violence or an effort to overthrow the government, and local law enforcement that brought the situation under control. On that record, the President's determination fell outside a range of honest judgment. The panel concluded that the order was ultra vires and violated separation of powers, held that the Tenth Amendment claim, framed as unlawful commandeering of state personnel, rose and fell with it, and found that irreparable harm, the equities, and the public interest favored Plaintiffs.
Judge Miller concurred, noting that Defendants forfeited any argument that no ultra vires cause of action exists and that Murphy Co. v. Biden binds the panel on that point. Judge Bennett dissented. He would not have decided the appeal, citing thin briefing on Illinois, argued that the claim is a statutory ultra vires claim subject to the strict Leedom v. Kyne standard, and doubted the Tenth Amendment claim because the Constitution gives Congress the power to call forth the militia.
Key Takeaways
- Presidential federalization of a state's National Guard under § 12406 depends on a real statutory exigency, and courts may review that determination under a highly deferential but not unlimited standard.
- Under § 12406(3) as read in Trump v. Illinois, the government must show both legal authority for the regular military to execute the laws and an inability to do so, and § 12406 itself does not supply that authority.
- A “rebellion” under § 12406(2) means an organized, armed, open uprising against the government as a whole, not sporadic violence tied to opposition to a single federal policy.
- The ruling is a preliminary-stage affirmance of a restraining order treated as an injunction; it does not finally resolve the merits, the separate Posse Comitatus and extension-order appeals, or whether Congress could authorize such a deployment.
Why It Matters
As a published decision, this opinion binds future Ninth Circuit panels on the reviewability of § 12406 exigency determinations, the meaning of “rebellion,” and the application of Trump v. Illinois to the regular-forces requirement. It also holds that a claim that the President acted with neither statutory nor background constitutional authority can proceed as a constitutional separation-of-powers claim under Murphy Co., without reaching the Kyne standard.
The dissent's objections to that characterization and to the Tenth Amendment reasoning mark points likely to draw further review, and the decision left open whether other Tenth Amendment theories or the procedural requirement that orders issue through governors would support relief.