Today in Court: The 9th Circuit Hears the National Guard Case

By Joyce Vance, Jun 17, 2025

After listening to the Ninth Circuit argument today (in the case involving whether Donald Trump had legal authority to federalize the California National Guard and send them into Los Angeles), I’m not optimistic about California’s chances. Usually, I don’t like to try to count votes in oral argument; judges are sometimes testing out arguments on the litigants and seeing how their colleagues react. Where they end up when the opinion comes out can be a very different place from where they are during argument.

But today, I was left with the feeling that this panel will come out in Trump’s favor and that it may even be 3-0. The panel included two Trump appointees from his first term, Judge Mark Bennett and Judge Eric Miller, and a Biden appointee, Judge Jennifer Sung. The case was very capably argued for California by Sam Harbourt, but the Judges didn’t seem to be on his side at the close. The government was represented by Brett Shumate, the Assistant Attorney General for DOJ’s Civil Division.

Right off the bat, Shumate reaffirmed the government’s view that the courts lack authority to review any decisions made by the president regarding federalizing the National Guard. It’s a maximalist view of presidential power and Shumate owned it completely, saying that the court has no role to play here.

You may recall from our discussion last week that in the district court, Judge Breyer took a different, more nuanced view. He believes that before a president can exercise his unfettered discretion to federalize the Guard, there must, in fact, be a rebellion (or one of the other triggers in the statute that lets the president take this step) in progress. In Judge Breyer’s view, a president can’t pretend there’s a rebellion going on when there isn’t one, to get away with usurping a state’s police powers.

The federal government sharply disagrees. When pressed with hypotheticals, Shumate stood firm, arguing that a president is entitled to federalize the Guard, even if they provide no reasons at all. He told the judges that the president’s decision is unreviewable. It takes a certain steely nerve to look a federal judge in the eye and tell him they are an inferior branch of government, but DOJ made no effort to soften its position. No exceptions, and no reluctance about it. The government argues that if a president decides to federalize the Guard, and says one of the conditions in the statute has been met, that’s it.

Source Links: https://joycevance.substack.com/p/today-in-court-the-9th-circuit-hears