The Trump administration is threatening to seek emergency relief from the U.S. Supreme Court if the 9th Circuit Court of Appeals moves forward with a potential en banc review of a case challenging President Donald Trump’s authority to federalize California’s National Guard.
The Department of Justice filed its response Friday, firmly opposing the rehearing. The DOJ argued that no such review is necessary — and noted that even the State of California hasn’t formally requested it, despite Governor Gavin Newsom’s repeated warnings that Trump’s National Guard deployment amounts to a “dangerous experiment.”
Earlier this month, a three-judge panel — including two Trump appointees and one Biden appointee — unanimously sided with the administration. The panel stayed a lower court ruling from U.S. District Judge Charles Breyer, who had found that Trump’s order overstepped his statutory authority and potentially violated the 10th Amendment.
The appellate panel concluded that President Trump had likely acted within the law when deploying the California National Guard to Los Angeles to secure federal buildings and personnel during protests tied to immigration raids. Citing 10 U.S. Code § 12406, the panel said the courts must be “highly deferential” to presidential decisions in such matters, though not entirely beyond judicial review.
Now, one judge on the 9th Circuit has requested a poll to determine whether the full court should rehear the case. That prompted Friday’s dueling legal briefs from the DOJ and the California Attorney General’s Office.
In its filing, the DOJ emphasized that California’s silence was telling: “California’s own litigation decisions confirm that rehearing en banc is unwarranted,” the government wrote. “Merits briefing is already underway” in Judge Breyer’s courtroom ahead of a bench trial set to begin in August.
The Justice Department added that allowing an en banc hearing now would upend the process, possibly result in conflicting rulings, and force the administration to ask the Supreme Court for emergency intervention to protect what it described as the president’s constitutional responsibility to enforce federal law.
In a footnote, the DOJ cited a recent New York Times article that reported the Trump administration had ordered the release of nearly 2,000 National Guard members in California, suggesting that recent de-escalation undermines the argument for rehearing.
Meanwhile, California Attorney General Rob Bonta countered that it was not unusual for the state to hold off on filing for rehearing until its August 4 deadline. He pointed to the court’s own order requesting supplemental briefing as evidence that the panel’s opinion raises serious constitutional concerns.
Bonta argued that the appellate panel misread federal law and warned that, unless reversed, the ruling could be used by President Trump or future presidents to justify deploying military forces into American cities under vague justifications — such as “dissatisfaction” with local enforcement — including potentially in the run-up to elections.
“Normalizing the president’s unprecedented deployment of troops risks chilling protected First Amendment speech, undermining state sovereignty over their militias, and concentrating dangerous authority in the executive,” the state’s brief stated. “En banc review is warranted to prevent this untenable and dangerous scenario.”
Judge Breyer, for now, has set key deadlines through mid-August in anticipation of trial proceedings. But if the 9th Circuit greenlights a rehearing, the legal and political stakes could rise sharply — possibly landing the issue before the Supreme Court before the fall.
