Ninth Circuit Finds Guard Federalization in Los Angeles Unlawful

A 2-1 panel with a Trump appointee in the majority says the 2025 takeover of 4,000 troops exceeded presidential power.

LOS ANGELES, California (Surf Revolt) – A federal appeals court has ruled that President Donald Trump unlawfully took control of about 4,000 California National Guard members during the immigration protests in Los Angeles. The Ninth Circuit’s opinion upholds a lower court’s preliminary injunction and returns the legal high ground to a principle that liberty-minded people on every part of the political map should defend: soldiers are not a police force, and the executive cannot create emergencies and then claim the powers they imply.

What the court decided

The panel split 2 to 1. According to Law Commentary’s account of the opinion, Judge Jennifer Sung wrote for the majority and Judge Eric Miller, a Trump appointee, joined it and wrote separately on California’s legal claims. Judge Mark Bennett, also a Trump appointee, dissented. The court found that Trump exceeded the authority Congress has given the presidency and encroached on Congress’s power over when state militias may be called into federal service. It also found California likely to succeed on its Tenth Amendment claim.

The decision turns on 10 U.S.C. 12406, the statute that lets a president federalize the Guard in an invasion, a rebellion or danger of one, or when federal law cannot be executed with regular forces. The majority concluded that Los Angeles did not meet the rebellion test. On the alternative justification, it relied on the Supreme Court’s December 2025 ruling in Trump v. Illinois to find that the administration had not shown it had authority to use regular military forces or that it could not do the job with them.

A procedural fight with real consequences

One detail deserves attention. According to Immigration Analytics’ summary of the ruling, the court refused the Justice Department’s request to dismiss the appeal, so the opinion stands as binding precedent across the nine Ninth Circuit states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The majority warned that letting parties drop fully litigated appeals could allow them to shape the law by withdrawing cases likely to produce unfavorable rulings. A separate appeal over later extensions of the deployment was dismissed.

Bennett, per the same summary, argued that changing position after an intervening Supreme Court decision is legitimate, that California loses nothing because the order remains in place, and that the court should not decide novel constitutional questions on thin briefing. That is a fair argument and it deserves to be stated. A government that changes course after the Supreme Court speaks is not acting in bad faith. Whether the judges should have accepted that change is exactly the kind of question that now goes to a possible rehearing request or Supreme Court petition, which the same summary says the government may pursue.

What the ruling does not do

It does not end immigration enforcement. Immigration Analytics notes that the decision leaves ICE’s arrest and detention authority intact, and that the Insurrection Act, which the opinion distinguishes from Section 12406, remains an open question that the panel did not decide. What it does is narrow the president’s use of a governor’s Guard troops to protect federal operations, requiring in this circuit a genuine rebellion or a showing that the regular military could lawfully do the work.

State officials were quick to claim the win. As KRCR reported on the ruling’s wider implications, Attorney General Rob Bonta called the deployment a “clear example of federal overreach.” A press release from his office, posted on the California Attorney General’s website, quotes Governor Gavin Newsom describing California as a “first line of defense” against what he calls authoritarianism. A libertarian need not share their politics to see that the legal point stands on its own.

The libertarian stake

The Posse Comitatus Act, which the state’s lawsuit invoked, reflects the old American wariness of soldiers serving as domestic police. A federal order that sends a state’s own militia to a city over the objection of its elected governor is a double offense, against federalism and against the principle of civilian policing. The Tenth Amendment is not a partisan device. It was used by a Democratic state this time, but it will be there for a Republican state when the next administration wants something different.

Consistency matters. Supporters of the deployment should imagine the same power in a future president’s hands pointed at a protest they sympathize with. Those who cheer this ruling should hold the same line when their own side holds the White House. Rules that bind everyone are the only rules that protect anyone.

The cost nobody counted

We found no cost figure for the 2025 deployment in the coverage we reviewed, and none of the court accounts we read gives one, so we will not invent a number. That absence is itself a point. A force of about 4,000 people, mobilized for what the opinion treats as an unlawful purpose, was paid for by taxpayers who had no vote on it. When the price of a domestic deployment is not part of the public conversation, the incentive to use it grows, since a force that looks free will be used freely.

It is worth recalling the scale of the contrast. The Pentagon puts the Iran war at $47.1 billion and counting, and nobody should assume that domestic deployments are cheap simply because they are small by comparison. Federal control of the California Guard ended on December 31, 2025, according to the Immigration Analytics summary, but the precedent is what endures. Further reading on the ruling includes Bloomberg Law’s coverage of the upheld block and a Reason Volokh Conspiracy post on the decision.

A free coast depends on a simple idea: those who govern should have to justify themselves to the governed before they bring force to town. For news of California with the comedy turned up, there is Bohiney Magazine.

SOURCE: https://bohiney.com/