185. The State of Play in the National Guard Cases

It's hard to keep track of the whirlwind of litigation surrounding President Trump's unprecedented deployments of federalized National Guard troops. Here's a quick update on where things stand.

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I wanted to put out a quick issue this morning to help folks piece together the myriad moving parts in the (different) lawsuits challenging President Trump’s controversial (and unprecedented) attempts to deploy federalized National Guard troops into different U.S. cities—especially Los Angeles, Chicago, and Portland. Not only are there three different cases currently at different stages of review in the federal courts, but even within those cases, multiple things are happening at the same time. And as early as today, we may hear from the Supreme Court in one of them. So in the hopes of providing clarity at least as to where we are and what comes next, here goes.

Los Angeles (Newsom v. Trump):

Chronologically, this case was first. Back in June, the district court (Judge Breyer) had issued a temporary restraining order (TRO) barring the federalization and deployment of California National Guard troops under 10 U.S.C. § 12406. A three-judge Ninth Circuit panel had stayed that order in full while the Trump administration appealed it. Three different things happened next.

First, an active judge on the Ninth Circuit requested a vote on whether that decision (granting a stay) should be reheard en banc (i.e., by the “full” Ninth Circuit).¹ That vote was resolved last night—with the court denying rehearing en banc. Judge Berzon (my former boss), who is now a senior judge, wrote what is effectively a dissent that was joined by 10 of her colleagues; and Judge Gould also wrote separately. (I’m biased, but Berzon’s opinion is really powerful.) Thus, unless California asks the Supreme Court to vacate the stay (which strikes me as highly unlikely), the panel’s stay of Judge Breyer’s original ruling remains in place … for now.

Second, the government’s actual appeal of Judge Breyer’s ruling on the “merits” continued apace. That appeal, ironically enough, was argued yesterday. And so we’re now also waiting for the original panel’s ruling on the substance of the government’s appeal—i.e., whether, on the merits, President Trump’s federalization of the California National Guard is reviewable; and if so, whether it was lawful. If the panel were to ultimately affirm Judge Breyer’s TRO, then that would presumably undercut the stay—although it would be up to the panel whether to leave the stay intact or dissolve it.

Third, Judge Breyer, in a separate ruling in the same case, held after a trial that at least some of the military’s behavior in and around Los Angeles violated the Posse Comitatus Act—and barred the federal government from similar behavior going forward. Judge Breyer stayed that injunction for 10 days pending the government’s separate appeal, which is currently pending in the Ninth Circuit (which has issued its own “administrative” stay to keep it on hold)—but it’s not moving with the same speed.

In other words, the state of play in the California case is that: (1) the TRO barring President Trump’s federalization and deployment of the California National Guard is currently stayed, and is likely to remain so at least until the panel decides the merits of the government’s appeal; (2) that decision is now ripe (although we probably won’t get it for at least a few weeks); and (3) once that decision comes out, if the district court is reversed, the next question will be the Posse Comitatus Act issue (whether, even though the deployments are lawful on their face, some aspects of them unlawfully crossed over into civilian law enforcement).

And that’s just one of these cases.

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Portland (Oregon v. Trump):

Part of the confusion surrounding these cases stems, methinks, from the fact that two of them are pending in the same court of appeals—the Ninth Circuit. In the Portland case, the district court (Judge Immergut) issued two different TROs—the first one blocking the federalization and deployment of the Oregon National Guard; the second blocking the federalization and deployment of all (specifically, California) National Guard personnel.

This Monday, a divided Ninth Circuit panel, over an unusually strident (and, in my view, powerful) dissent from Judge Graber, stayed the first of Judge Immergut’s TROs—temporarily allowing for the federalization and deployment of Oregon National Guard personnel in Portland. (The second TRO was not, at least at that point, before the Ninth Circuit.) A judge on the Ninth Circuit has already asked for that order to be reheard en banc, and briefing respecting the en banc call was due by midnight (the beginning of the day) yesterday. So the stay of Judge Immergut’s TRO with respect to the Oregon National Guard remains in place pending action by the en banc Ninth Circuit, but the TRO with respect to all National Guard personnel remains in place.

The Trump administration has asked Judge Immergut to dissolve (or, at least, stay) the second TRO in light of the panel’s stay of the first one. I suspect that she’ll wait at least for the outcome of the en banc proceedings before moving on that—and, potentially, Supreme Court review (or guidance from the Supreme Court in the Illinois case).

Speaking of which…

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Chicago (Illinois v. Trump):

This summary is going to be shorter, at least in part because I wrote in detail about this case in Monday’s regular issue of the newsletter. Briefly, the district court (Judge Perry) had issued a TRO barring President Trump’s federalization of both Illinois and Texas National Guard personnel and their putative deployment into and around Chicago. The Trump administration appealed that decision, and sought a stay from the Seventh Circuit while that appeal goes forward. Last Thursday, the Seventh Circuit denied almost all of the Trump administration’s stay application—pausing that part of the district court ruling that barred even the mobilization of the affected personnel, but leaving in place the bar on their deployment. The Trump administration then asked the Supreme Court to stay the rest of Judge Perry’s TRO—a decision in which could come literally at any time.

One strange thing about the Chicago case: Judge Perry’s original TRO was set to expire today. There was a hearing in the district court yesterday in which the Trump administration itself proposed “an extension of the TRO until a final decision on the merits is reached, without prejudice to Defendants’ continued pursuit of appellate relief and subject to any relief granted on appeal.” The plaintiffs agreed and the court “accept[ed] Defendants’ proposal.” Judge Perry explained that “extending the TRO will allow Defendants to allocate their legal resources in the way they feel is most appropriate and give the parties time to conduct fact discovery and submit well−reasoned legal briefs and motions on the complex and weighty topics raised in this matter.” In other words, the Trump administration is asking the Supreme Court for a stay of a TRO that it agreed to extend. In other times, I would’ve thought that such a concession should have been fatal to their chances of a stay from the Supreme Court. In 2025, well…

In the meantime, the federal government’s appeal of the district court’s TRO continues to proceed in the Seventh Circuit—with the Trump administration’s opening brief currently due November 19.

So at the moment, federalized National Guard troops may not be deployed into Illinois under 10 U.S.C. § 12406. But the next thing we should hear on that subject is likely to come from the Supreme Court.

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The State of Play, More Generally

I realize there is a lot of procedural detail reflected in the above discussion. Just in case you got lost somewhere along the way, the upshot is that use of federalized National Guard troops is currently okay in California; not okay in Illinois; and not okay in Oregon. But what comes next from either the Supreme Court in Illinois or the en banc Ninth Circuit in Oregon will have a lot to say about those status quos.

I should also note that there is separate litigation underway challenging some other uses of the National Guard by the Trump administration. But none of those cases involve challenges by states to deployments of federalized National Guard units; and none have raised the same questions as those presented in Newsom, Oregon, and Illinois.

That said, for all of the procedural detail, it’s worth not losing sight of two broader, substantive points:

First, with the exception of Judge Nelson’s solo concurrence in the Ninth Circuit panel ruling in the Portland case, all of these courts have agreed that, contra the Trump administration’s position, the courts have a role to play in scrutinizing the President’s invocation of these authorities. Of course, that doesn’t mean much if the courts’ role is merely going to be rubber-stamping the President’s dubious factual claims and legal arguments, but that’s at least one small, cautious note of optimism.

Second, as my friend and Georgetown Law colleague Marty Lederman argued quite persuasively in an amicus brief filed in the Supreme Court in the Illinois case, there’s a pretty good argument that the lower courts have largely sidestepped that would make all of these cases much easier. To federalize National Guard troops under 10 U.S.C. § 12406(3), the President must determine that he “is unable with the regular forces to execute the laws of the United States.” The lower courts (other than Judge Perry in Illinois) have assumed, to date, that “regular forces” includes civilian law enforcement personnel. As Professor Lederman powerfully explains, that can’t possibly be correct; there is significant textual and contextual support for the proposition that “the regular forces” is a reference to the active service federal military. And because there has been no effort “to execute the laws of the United States” with those forces (and no finding that the President is unable to do so), the invocations of § 12406(3) could be struck down on far simpler (and less fraught) grounds than what it really means for the President to be “unable” to enforce federal law, and who decides that question.

Here’s hoping that argument gets serious consideration by the Supreme Court, the en banc Ninth Circuit, and any other courts confronting these novel and critically important legal questions.

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We’ll be back (no later than) Monday with more regular coverage of the Supreme Court. I hope you found this extra issue of “One First” useful. And if you’re not already a subscriber, I hope you’ll consider becoming one:

Stay safe out there, all.

1. As I’ve explained elsewhere, the Ninth Circuit, owing to its size (with 29 active judges), has a unique en banc procedure. Although voting on whether to rehear a case en banc follows the same path as in other courts of appeals (where it takes a majority of the active, non-recused judges to grant rehearing en banc—so 15, here), the actual rehearing takes place before a “limited” en banc panel that includes Chief Judge Murguia and 10 judges randomly drawn from the pool of non-recused active judges and senior judges who were on the original panel and wish to be eligible for en banc review. So it usually takes 15 votes to grant rehearing en banc, but then the actual “en banc” court includes (at most) 11 of the 29 active judges. There’s a procedure for the entire court to sit (what’s informally known as a “super en banc”), but despite several requests for such a hearing, it’s never been granted.