In a courtroom echoing with questions more than answers, a panel of federal judges on Tuesday grappled with a constitutional riddle: can courts second-guess a president’s decision to send in troops — or is that judgment beyond judicial reach?
At the heart of the case lies Donald Trump’s controversial move to deploy 4,000 National Guard troops and 700 U.S. Marines to Los Angeles earlier this month, igniting a firestorm in the midst of city-wide protests and federal immigration raids. The deployment, greenlit without California Governor Gavin Newsom’s consent, was struck down by U.S. District Judge Charles Breyer, who ruled the president had overstepped his authority.
But now, the Trump administration is pushing back, asking the 9th U.S. Circuit Court of Appeals to hit pause on Breyer’s ruling. And the three-judge panel—featuring appointees from both Trump and Biden—seemed torn between national security and state sovereignty.
Justice Department attorney Brett Shumate argued that Breyer had trespassed on presidential powers, saying Trump acted within his constitutional rights to protect federal assets from “mob violence.” To Shumate, there’s no room for courts—or governors—to weigh in once the president invokes federal authority.
“The governor is merely a conduit, not a gatekeeper,” he asserted, brushing aside Newsom’s objections as irrelevant under Title 10 of the U.S. Code.
But California’s lawyer, Samuel Harbourt, was having none of it. He pointed to Section 12406, which requires both a true rebellion or invasion and state-level consultation before the National Guard can be federalized. “None of that happened,” Harbourt told the panel. “This wasn’t a rebellion. It was protest. And Newsom was completely sidelined.”
One judge, Mark Bennett, appointed by Trump, pushed back. “Even if there’s some role for judicial review,” he asked, “how is that test met here?”
It’s not just legal nuance at stake. The ruling could redraw boundaries between executive muscle and judicial oversight. Harbourt warned that allowing Trump’s move to stand would “profoundly injure” California and tear at the fabric of state sovereignty, political protest rights, and civilian control over military force.
The panel didn’t issue a ruling but hinted it could act swiftly, possibly before Breyer’s next hearing scheduled for Friday.
In the meantime, a constitutional fault line remains exposed: who ultimately decides when the military marches into a U.S. city—the president, the governor, or the courts? The answer, it seems, is still lost in the fog of legal war.
