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Donald Trump

Ninth Circuit Rules Trump Illegally Federalized National Guard in Los Angeles

The ruling is an important decision on judicial review of executive invocation of emergency powers to use the military for domestic law enforcement.

Ilya Somin | 10.26.2026 6:59 PM

Texas National Guard members in Illinois (Brian Cassella/TNS/Newscom)

On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).

Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.

The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the........

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