The 9th Circuit ruled 2-1 on October 23 that President Donald Trump's June 2025 federalization of 4,000 California National Guard troops was "ultra vires and unconstitutional."
The panel affirmed a district court order blocking the deployment to Los Angeles. Judge Sung's opinion, as summarized by Tyler Durden, says neither statute the administration relied on covered it. The order "exceeded the President's statutory authority and encroached on Congress's calling forth power," the opinion says.
Sung is a Biden appointee. Judge Eric Miller, a Trump appointee, joined her and wrote separately only to say the government forfeited its argument that no cause of action exists. Judge Mark Bennett, also a Trump nominee, dissented. Military.com reported that the Justice Department did not respond to its request for comment.
Here is the twist. The panel's own June 2025 stay order had found Trump likely acted within 10 U.S.C. § 12406(3), which lets a president federalize the Guard when he is "unable with the regular forces to execute the laws." That changed after the Supreme Court's December ruling in Trump v. Illinois. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from it.
Under that ruling, a president must first show he has authority to use the regular military to execute the laws. He must also show he is unable to do so with those forces. The panel held the administration made neither showing.
That left the fallback, § 12406(2), which covers "a rebellion or danger of a rebellion against the authority of the Government of the United States." The court turned to dictionaries from when the statute was written. It read rebellion as "a violent, armed, organized, open and avowed uprising against the government as a whole," not opposition to a single law or policy. It noted that an 1897 dictionary set rebellion apart from insurrection, which it said may be "a rising in opposition to a particular act or law."
Plain version: the panel says protesting one policy is not rebellion.
The court did not wave away the violence. It cited the district court's findings on three days in June 2025:
- June 6: about 800 protesters gathered at two sites. Some threw concrete chunks and bottles at federal officers.
- June 7: protesters in Paramount and Compton set a vehicle on fire, looted a gas station and threw a Molotov cocktail. About 11 people were arrested that night.
- June 8: the crowd grew to about 3,500. At least 42 were arrested.
Even so, the panel found "no evidence of organized, as apart from sporadic or impromptu, violence." It also found no evidence, as of the June 12 hearing, "of any protesters carrying firearms." Hundreds of civilian law enforcement officers, including a team trained for civil unrest, had brought the early clashes under control.
Quoting the district court, the panel said the protesters "gathered to protest a single issue - the immigration raids." A rebellion finding on that record, it concluded, fell outside a "range of honest judgment."
Bennett's dissent is mostly procedural. After the Supreme Court acted, the administration moved on January 23 to dismiss its own appeal. The panel denied that motion in a separate order. Bennett argued the court should have granted it. He said the majority instead relied on "outdated briefs prepared amid a shifting legal landscape." He also said California's Tenth Amendment claim, which the parties "barely briefed," is unlikely to succeed.
His sharpest warning is about what comes next. The published opinion, Bennett wrote, "will bind future three-judge panels, absent intervening precedent from the Supreme Court or an en banc panel."
The ruling matters mainly as precedent, because the troops are already home.
California's attorney general says that after the Supreme Court's decision, the administration let the district court's order take effect. Command returned to Gov. Gavin Newsom.
Newsom called the ruling "a crucial day for the rule of law." Attorney General Rob Bonta called the deployment "a clear example of federal overreach." Military.com carried both statements, and Bonta's office published them.
The fight is not over. Two other pieces are on separate appeals: Judge Charles Breyer's September 2025 permanent injunction under the Posse Comitatus Act, which followed a bench trial, and his December 10, 2025 injunction against the extensions of the federalization.