On October 23, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Newsom v. Trump, finding that Trump’s federalization of the California National Guard violated federal law and the Tenth Amendment. The case stems from the president’s June 2025 order federalizing the Guard in response to protests against Immigration and Customs Enforcement in Los Angeles. A district court had initially blocked the order with an injunction, which the Ninth Circuit temporarily lifted.
The majority opinion, written by Judge Jennifer Sung and joined by Judge Eric Miller, held that the federalization was not authorized under 10 U.S.C. Section 12406. That statute allows a president to call state Guard forces into federal service only in cases of invasion, rebellion, or when the regular forces are inadequate to enforce federal laws. The Supreme Court had already ruled in a related Illinois case that the third condition did not apply to protest situations, leaving only the rebellion ground.
The Ninth Circuit defined rebellion as “a violent, armed, organized, open and avowed uprising against the government as a whole” and concluded that the Los Angeles protests did not come close to meeting that standard. Because the federalization orders were invalid, the Guard members remained state personnel, and compelling them to enforce federal immigration law amounted to unconstitutional commandeering under the Tenth Amendment.
Judge Mark Bennett dissented on procedural grounds and challenged the majority’s Tenth Amendment analysis, arguing that the Constitution assigns Congress the power to call forth the militia. The ruling, written by a liberal Biden appointee and joined by a conservative Trump appointee, underscores broad agreement on the limits of executive power in this area.