President Donald Trump holds an artist rendering of interior of the new White House ballroom as meets with NATO Secretary General Mark Rutte in the Oval Office of the White House, Wednesday, Oct. 22, 2025, in Washington (AP Photo/Alex Brandon).
The Trump administration got a boost from an appellate court late Wednesday night in one of the ongoing legal showdowns over the federal use of state National Guard troops to police American cities.
In an order without a majority opinion, the full U.S. Court of Appeals for the 9th Circuit declined to rehear en banc the dispute between California Gov. Gavin Newsom and President Donald Trump.
In late June, a three-judge panel said courts had an oversight role to play but must be "highly deferential" to executive authority in military matters — issuing a stay, pending appeal, of a lower court injunction in Trump's favor. The panel further found the 45th and 47th president "likely" acted "lawfully" when deploying the Golden State's troops in service of actions to protect federal property and agents with Immigration and Customs Enforcement (ICE) from protesters.
In early July, one 9th Circuit judge, in a sua sponte — or "of one's own accord" — order, called for the entire court to reconsider the case. In turn, motions practice commenced in response to that request and, simultaneously, on a parallel track as Newsom and Trump continued the overarching appellate battle amid a flurry of amicus briefs.
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On Wednesday afternoon, the appellate court finally held a hearing on the en banc request.
Now, without one line of reasoning, a majority of active judges have declined to take up the matter of the months-old stay pending appeal.
"A judge of this court sua sponte requested a vote on whether to rehear this case en banc," the one-page order reads. "A vote was taken, and the matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Rehearing en banc is DENIED."
There are two dissents attached to the order — one formal and one less than formal. One of the dissents is stylized as a "statement" while the other, penned by a lone judge, is stylized as a "dissent."
The statement by Senior U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, was joined by 10 other judges — including three other senior judges. In the U.S. judiciary, senior judges are not allowed to vote on motions to rehear a case en banc; senior judges are allowed to perform other dispute-related work, like writing statements.
Berzon frames the case as a historical aberration.
"This case presents an issue of the gravest consequence: the peacetime deployment of military troops in American cities," the statement begins. "For the first time in the nearly 250-year history of this country, the President claims extraordinary, unilateral powers to order state National Guard troops onto the streets of select cities in response to short-term, hyper-localized, domestic protests of federal policies. This claimed authority clashes directly with the traditional strong resistance of Americans to military intrusion into civil affairs."
The statement goes on to describe the "venerable tradition" of opposing domestic military interventions as rooted in anti-British sentiment "preceding the American Revolution." Such sentiment, the statement says, is "reflected in the Declaration of Independence and several provisions in the Constitution."
The 11 judges describe Trump's federalization and deployment of California's troops as "improper" and characterize the panel's deference to the executive branch as "fundamentally erroneous."
The statement goes on like this, at length:
[T]he panel in this case should have considered whether the President was likely to succeed in showing that he complied with the very specific terms of the purely statutory grant of authority when he ordered the California National Guard onto the streets of Los Angeles over the objection of state authorities. Absent judicial insistence on compliance with strict statutory limits on the use of the military for domestic purposes, this country could devolve into one in which the use of military force displaces the rule of law, principles of federalism, and the federal separation of powers, all fundamental precepts of our democracy long understood as protecting the liberties of individuals and the assurance of self-governance.
The June panel decision, in its precedential effect on other courts, has caused a great deal of turmoil as such federalizations and deployments have continued apace, the statement argues.
"[G]iven the recent and ongoing rash of deployments of National Guard troops to city streets in response to localized protests, based on unsupported assertions about crime and disorder, this court should have addressed the legal principles governing such deployments now, not later," the 11-judge statement continues.
The formal dissent, penned by U.S. Circuit Judge Ronald Gould, who is in active status, fully joins the Berzon statement — and refers to the statement as a "well-reasoned dissent."
While Berzon spends considerable time analyzing the statutes at issue in the case, Gould tersely dissects the role of the courts — and, in so doing, takes aim at his colleagues for denying en banc review.
"A case that determines when a President may federalize and deploy American troops into our own cities warranted a more extensive consideration," Gould writes. "When Congress places limits on the President's statutory powers, courts must enforce them. Our Court's latest foray into the presidential powers arena abdicated that key responsibility."
The June panel, for its part, said a president can satisfy the National Guard in federal service statute when an exercise of power "reflects a colorable assessment of the facts and law within a range of honest judgment."
Gould lambastes the upshot of that ruling.
"This ill-considered rule in our Circuit gives the President an almost unfettered ability to deploy American troops into our cities," the dissent reads. "Under this rule, it is difficult for me to conceive of a likely situation in which a court could determine a President did not meet this unprecedented and extremely deferential standard."
To hear the dissent tell it, his colleagues effectively rendered the statute meaningless.
"When Congress limits statutory grants of presidential power, its words must mean something if our constitutional design is to endure," Gould goes on. "The President may not exercise power merely by invoking the authorizing statute's words regardless of their application to the situation at hand."
