Labor & Employment Law Daily Wrap Up, IMMIGRATION NEWS—Ninth Circuit stays TRO against Trump’s deployment of National Guard in LA, (Jun 20, 2025)

By Jason Albright, J.D.

The court, however, rejected the White House’s contention that the President’s order federalizing members of the National Guard under 10 U.S.C. § 12406 is not justiciable under the political question doctrine.

A three-member panel of the Ninth Circuit last evening unanimously issued a stay against a temporary restraining order that would have halted President Trump’s deployment of the California National Guard in the context of local protests against the intensified U.S. Immigration and Customs Enforcement (ICE) deportation operations Trump previously ordered in Los Angeles. Finding that the political question doctrine does not bar judicial review in the case, the appeals court went on to hold that the President had a colorable basis for invoking 10 U.S.C. § 12406(3), which authorizes the federal deputization of State National Guard members when “the President is unable with the regular forces to execute the laws of the United States.”

LA protests. On June 6, 2025, according to the court, a group of protesters tried to prevent ICE officials from operating in Los Angeles by throwing objects at ICE vehicles. The Los Angeles Police Department arrived on the scene about an hour after being called by federal officers, and the protesters eventually dispersed at law enforcement’s direction, but the federal building had been heavily vandalized.

The next day, protesters continued to interfere with federal enforcement operations by a Homeland Security Investigations Office in Paramount, California, and continued to damage federal property, according to the court. In a confrontation that lasted over seven hours, protesters blocked traffic and used shopping carts to barricade the street.

President’s memorandum. In response to these incidents, President Trump signed a memorandum on June 7, 2025, calling into federal service at least 2,000 members of the National Guard pursuant to 10 U.S.C. § 12406. The memorandum explained that the service members were needed “to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.” The memorandum directed Secretary of Defense Pete Hegseth “to coordinate with the Governors of the States and the National Guard Bureau in identifying and ordering into Federal service the appropriate members and units of the National Guard.”

Hegseth subsequently called into service 2,000 California National Guard members for 60 days, and following ongoing protests, on June 9, he issued a second memorandum calling into service an additional 2,000 members of the California National Guard for 60 days.

Newsom’s lawsuit. That day, California Governor Gavin Newsom and the State of California filed suit against Trump, Hegseth, and the Department of Defense, asserting ultra vires, Tenth Amendment, and APA claims, all primarily based on the allegation that the defendants unlawfully called into federal service members of the California National Guard. They sought declaratory and injunctive relief, and on June 10, they moved for a temporary restraining order (TRO).

TRO. A federal district court in California granted a TRO on June 12, concluding that the deployment of the National Guard “inflames tensions with protesters” and “deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions.” The district court’s order temporarily enjoined—with no end date—the defendants “from deploying members of the California National Guard in Los Angeles” and directed the defendants “to return control of the California National Guard to Governor Newsom.” The district court, however, stayed its order until noon on June 13, 2025, and set a preliminary injunction hearing for June 20, 2025.

Immediate appeal. The defendants immediately filed a notice of appeal and moved for an emergency stay pending appeal. The Ninth Circuit thereupon issued an administrative stay of the TRO and held oral argument on June 17.

Not a political question. The appeals court initially rejected the defendants’ assertion that a claim challenging the President’s order federalizing members of the National Guard under 10 U.S.C. § 12406 is not justiciable under the political question doctrine. The defendants here acknowledged that “[t]he only authority the president invoked was this particular statute,” that is, Section 12406. They thus did not argue that the President’s inherent authority, whatever its scope, would allow him to “take[] measures incompatible with the expressed or implied will of Congress” reflected in that statute. The source of the President’s power to federalize the National Guard here was thus statutory, not constitutional, and so the political question doctrine did not bar judicial review.

Colorable basis for invoking Section 12406(3). Under a highly deferential standard of review, the Ninth Circuit found that the defendants presented facts to allow it to conclude that the President had a colorable basis for invoking Section 12406(3), which authorizes the federal deputization of State National Guard members when “the President is unable with the regular forces to execute the laws of the United States.”

Specifically, they presented evidence, “of protesters’ interference with the ability of federal officers to execute the laws, leading up to the President’s federalization of the National Guard on June 7.” There was evidence that, the day before, protesters threw objects at ICE vehicles trying to complete a law enforcement operation, “pinned down” several Federal Protective Service officers defending federal property by throwing “concrete chunks, bottles of liquid, and other objects,” and used “large rolling commercial dumpsters as a battering ram” in an attempt to breach the parking garage of a federal building. The plaintiffs’ own submissions, observed the court, stated that some protesters threw objects, including Molotov cocktails, and vandalized property. “According to the declarations submitted by Defendants,” concluded the Ninth Circuit, those activities significantly impeded the ability of federal officers to execute the laws.

The case is No. 25-3727.

News: Immigration ImmigrationNews WhiteHouseNews RemediesDamages CaliforniaNews