In June 2025, in response to unrest in Los Angeles over immigration enforcement, Trump invoked 10 U.S.C. 12406 to order 4,000 members of the California National Guard into federal service for 60 days to protect federal property and personnel. California and Gov. Gavin Newsom sued. District Judge Charles Breyer blocked the deployment, but the same three Ninth Circuit judges stayed his order and let it go forward. The federalized troops were ordered out of Los Angeles last December, the Los Angeles Times reported.
On October 23, 2026, that panel ruled 2-1 that the federalization was unlawful, affirming Breyer's order. Judge Jennifer Sung, a Biden appointee, wrote for herself and Judge Eric Miller; Judge Mark Bennett dissented, so the ruling split Trump's own appointees, the Los Angeles Times noted. Applying the Supreme Court's 2025 order in Trump v. Illinois, the majority held that the government had not made either of the threshold showings it requires, and found California likely to succeed in showing that the president's finding of “a rebellion or danger of rebellion” in Los Angeles on June 7, 2025 was not “a colorable assessment” of the facts.
Because neither provision of the statute authorized the order, Sung wrote, it “exceeded the President's statutory authority and encroached on Congress's calling forth power, in violation of the constitutional separation of powers.” She added, “Resistance that is not violent, armed, organized, and against the government as a whole generally does not require a military response.” The court was reviewing a preliminary order, so its holdings are framed as what California is likely to prove.
In a separate order the panel refused the Justice Department's January 2026 request to drop its own appeal, finding the case not moot because a ruling could prevent a similar federalization in the future; Bennett would not have decided the appeal at all. With the troops gone, the decision matters mostly as precedent: the Los Angeles Times said it appeared to foreclose the administration's effort to keep the option of calling up California troops again under the same statute. Newsom called it “a crucial day for the rule of law.” The Justice Department did not respond to Military.com's request for comment.