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Donald Trump

Deference, the Insurrection Act, and Statutory History

A guest post by Prof. Joshua Braver.

Ilya Somin | 11.9.2026 9:30 AM

I recently wrote about the Ninth Circuit's decision in Newsom v. Trump, which ruled that Trump's federalization of the California National Guard last year, was illegal. Previously I assessed the Supreme Court's ruling in the closely related case of Trump v. Illinois. Today, we have a guest post on these and related issues, by Professor Joshua Braver of the University of Wisconsin. Josh is one of the nation's leading experts on the law regulating domestic use of the armed forces, and my coauthor on two article about exclusionary zoning (see here and here).

The Volokh Conspiracy and I are pleased to be able to feature his post on this extraordinarily important issue. It is cross-posted with the Just Security site. What follows below is written by Josh Braver, not me (Ilya Somin):

On October 23, in Newsom v. Trump, the Ninth Circuit struck down President Donald Trump's June 2025 federalization of the National Guard in Los Angeles. Although I agree with the result, I disagree with its reasoning on deference. The issue is whether courts should defer to the president, that is, give a president significant leeway in their assessment of the facts on the ground and whether those facts meet the statutory criteria for deploying the military. The Ninth Circuit decided to be, in its words, "highly deferential" in both its decision on Los Angeles and its decision on federalizing the Guard in Portland. That line of reasoning also influenced the Seventh Circuit's decision to give "great deference" in the Chicago case.

In adopting this "highly deferential" standard, the Ninth Circuit claimed to rely on the statutory history of domestic military deployment. But that history actually cuts in the opposite direction, against deference, as I discuss extensively in an article just published in the Emory Law Journal. The significance of that history extends beyond the recent decision in Newsom, which concerned the novel use of a little-known statute, 10 U.S.C. § 12406. The larger question is whether courts should defer to a president when they invoke the Insurrection Act, the main and most fearsome statute for domestic deployment of the military.

Legal commentators had previously recognized these stakes in the last significant decision on these domestic deployments. After the Supreme Court blocked the deployment of the Guard in Chicago last December, some called the decision a "pyrrhic victory;" as Jack Goldsmith put it, the Insurrection Act still "lie[s] in the wings." In Goldsmith's view, the Insurrection Act is "much more robust" than § 12406, and the "power authorized here is astounding," in large part because of the "greater claim to presidential deference" under the Insurrection Act. According to Goldsmith and co-author Bob Bauer, "The president will receive very significant deference from courts in his determination that an Insurrection Act predicate is satisfied." The Ninth Circuit's decision on deference........

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