Judge questions power to rule on Trump's National Guard order after 9th Circuit reversal

In the latest twist to a legal battle over the Trump administration's federalization of the California National Guard, a San Francisco district judge on Friday questioned whether he still has authority to intervene in the case concerning possible violations of the 1878 Posse Comitatus Act.

Senior U.S. District Judge Charles R. Breyer's inquiry came one day after a 9th U.S. Circuit Court of Appeals panel reversed his earlier order restoring control of the guard to Gov. Gavin Newsom. Breyer asked attorneys for the Trump administration and Newsom to submit briefs by noon Monday on whether he retains jurisdiction over the case or whether it now belongs to the 9th Circuit.

"It is not clear to me that the 9th Circuit's stay of the TRO divests this court of its usual authority ... to grant or modify an injunction as to the Posse Comitatus Act," Breyer, an appointee of President Bill Clinton, said at a hearing.

The 9th Circuit's unsigned order had cast Breyer's temporary restraining order as having what the judge said was "the practical effect of a preliminary injunction," raising questions about what power, if any, remains with the lower court.

Deputy Assistant Attorney General Eric J. Hamilton, arguing on behalf of the administration, told the court that President Donald Trump -- through Secretary of Defense Pete Hegseth -- has sweeping authority to maintain the federalized status of the National Guard for 60 days, or indefinitely at the secretary's discretion, citing a June 7 memorandum from the White House.

The appellate panel -- comprised of Judges Mark J. Bennett and Eric D. Miller, both Trump appointees, and Judge Jennifer Sung, appointed by President Biden -- rejected the administration's claim that the president's order is beyond judicial review.

But in a win for Trump, the panel held that courts must show "high deference" to presidential decisions under 10 U.S.C. § 12406, which governs whether the National Guard can be federalized over a governor's objections to quell a rebellion, the danger of a rebellion, or if he is "unable with the regular forces to execute the laws of the United States."

"We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard ... is completely insulated from judicial review," the panel stated. "Nonetheless, ... our review of that decision must be highly deferential."

"Both irreparable harm and the public interest weigh in favor of Defendants, who have an uncontested interest in the protection of federal agents and property and the faithful execution of law," the panel wrote. Newsom v. Trump et al., 2025 DJDAR 5423 (9th Circ., filed June 12, 2025).

None of the 9th Circuit judges on the panel dissented.

Notably absent from both Breyer's original TRO and the 9th Circuit's decision was any substantive discussion of the Posse Comitatus Act, which prohibits the use of federal military forces for domestic law enforcement -- a line critics argue has become dangerously blurred in the Trump administration's latest move.

Attorneys with the state attorney general's office argued that the Trump administration was violating the Posse Comitatus Act, but Breyer said he had no evidence of that during a June 12 hearing. "It seems somewhat speculative," the judge said.

The attorney general's office did not raise the issue before the 9th Circuit panel, which declined to address the matter. "We express no opinion on it," the judges wrote in their per curiam order.

Breyer wondered during Friday's hearing whether his court or the 9th Circuit "retains primary jurisdiction to modify or grant an injunction under the Posse Comitatus Act," and asked for the briefs by the state and federal government to address that question.

"My guess is that you might disagree," he said.

Deputy Attorney General Jane E. Reilley told Breyer that the state's position is that the Posse Comitatus Act remains in his jurisdiction, not the 9th Circuit's.

"You didn't appeal it, and they didn't address it," the judge replied.

Breyer apologized for "ruining everybody's weekend" by forcing them to write briefs that are due Monday.

The president has federalized about 4,000 California National Guard troops and sent roughly 700 Marines to Los Angeles to protect federal buildings and ICE agents who were attacked while conducting arrests for violations of immigration laws.

Trump, on his Truth Social platform, hailed the panel's ruling as a "BIG WIN" late Thursday and wrote that it means "all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done."

Newsom expressed disappointment with the 9th Circuit's decision in a statement.

"The court rightly rejected Trump's claim that he can do whatever he wants with the National Guard and not have to explain himself to a court," the governor wrote. "The President is not a king and is not above the law. We will press forward with our challenge to President Trump's authoritarian use of U.S. military soldiers against citizens."