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President Donald Trump and California Gov. Gavin Newsom are headed for another legal clash next week after the president activated the National Guard to respond to anti-immigration enforcement protests and riots in Los Angeles.
The anticipated showdown will take place on Tuesday and comes after Judge Charles Breyer, a Clinton appointee, ruled Thursday night that Trump’s use of the National Guard was illegal and ordered the president to temporarily relinquish control of the soldiers.
Newsom, a Democrat, celebrated the ruling, saying Trump had deployed the National Guard to his state out of “vanity” and to “instill fear” and to “incite a response.” But Newsom’s win was short-lived as the U.S. Court of Appeals for the Ninth Circuit quickly put Breyer’s decision on hold in a matter of hours.
The appellate court’s stay will remain in place at least through Tuesday, when attorneys for the California Attorney General’s Office and the Trump administration argue before a three-judge panel about whether the court should grant a longer-term stay.
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Judges Mark Bennett and Eric Miller, both Trump appointees, and Judge Jennifer Sung, a Biden appointee, will hear the arguments.
For now, Trump and Secretary of Defense Pete Hegseth can continue to deploy thousands of National Guard soldiers in California, as well as hundreds of Marines. Trump and Hegseth indicated in court papers that military forces would be used strictly to protect federal personnel and federal buildings as they faced attacks by anti-Immigration and Customs Enforcement (ICE) rioters in recent days.
Department of Justice (DOJ) attorneys argued that a judge’s decision to block the Trump administration from carrying out these military activities “would judicially countermand the Commander in Chief’s military directives,” especially if the decision were issued through a temporary restraining order, like what Breyer issued Thursday night.
“That would be unprecedented. It would be constitutionally anathema. And it would be dangerous,” the DOJ attorneys said.
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The decision by Breyer, the 83-year-old brother of retired liberal Justice Stephen Breyer, was met with skepticism by some. Attorney Ed Whelan, a right-of-center former DOJ official, said in remarks online that it was “far more sweeping” than he had expected.
Whelan said a significant legal fight could be brewing over the provision of Title 10 that Trump used to federalize the National Guard. Typically, presidents deploy National Guard members with a governor’s consent, but the law leaves room for debate on whether the governor’s permission is required. Whelan speculated that Trump could attempt to use another provision of Title 10, the Insurrection Act, to bypass the court proceedings.
“10 USC 252 seems to give him much freer authority,” Whelan said, citing the insurrection law.
The National Guard fight comes against the backdrop of Trump hosting a major military parade in Washington, D.C. on Saturday. The event, slated to cost tens of millions of dollars, will showcase U.S. military power and commemorate the Army’s 250th birthday. Trump’s birthday is also that day.
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Trump’s critics have coined the day “No Kings Day” and are planning to voice their objections to the president’s show of force at protests around the country on Saturday. California alone is expected to see dozens of protests.
While Trump is in the nation’s capital, the protesters will be “literally everywhere else,” Ezra Levin, one of the organizers, told the left-leaning Contrarian on Substack.
“It’s the 250th anniversary of the Continental Army, which was formed to push back against a mad king,” Levin said, noting the protests would be peaceful and serve as a recruitment tool in the “pro-Democracy fight” against Trump.
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