The US Court of Appeals for the Ninth Circuit blocked a lower court’s decision to return the California National Guard to Governor Gavin Newsom’s control late Thursday. A hearing on the temporary stay, which reversed US District Judge Charles Breyer’s ruling earlier Thursday to remove the California National Guard from federal control, has been scheduled for Tuesday.

Last weekend, President Donald Trump federalized the California National Guard, citing 10 U.S.C. § 12406 (2023), National Guard in Federal service, as his authority. The code allows a president to call into federal service a state’s national guard when needed to suppress a foreign invasion or any form of rebellion, or if the president cannot execute US law with existing forces.

Assistant Attorney General Brett Shumate, representing President Trump and the Department of Defense (DOD), argued Breyer had no authority to review the president’s invocation of any of the elements of the statute, calling such a decision an “extraordinary intrusion on the President’s constitutional authority as Commander in Chief.”

President Trump and the DOD claimed there was a rebellion against the US government, citing unspecified “incidents of violence and disorder,” which prompted the move to federalize the California National Guard “to protect federal officers enforcing federal immigration law in Los Angeles.”

Breyer noted in his order the US government’s “unlawful federalization” of the California National Guard “interfered with the state’s legitimate police power.”

He wrote:

Plaintiffs and the citizens of Los Angeles face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but 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.

Newsom sued to prevent the president’s action on June 9, calling it “[a]n unmistakable step toward authoritarianism.” He added:

Donald Trump is creating fear and terror by failing to adhere to the U.S. Constitution and overstepping his authority. This is a manufactured crisis to allow him to take over a state militia, damaging the very foundation of our republic. Every governor, red or blue, should reject this outrageous overreach.