Top judge warns Donald Trump threatens US society
A senior federal judge has issued an unusual warning about the dangers of normalizing presidential use of military forces in U.S. cities, breaking with colleagues on the Ninth Circuit Court of Appeals in Newsom v. Trump, a dispute over President Donald Trump’s deployment of the California National Guard.
Legal experts say the ruling has far-reaching implications for presidential power, judicial oversight, and the historic boundary separating civilian law enforcement from military authority in the United States.
Why It Matters
The dispute over Trump’s deployment of the California National Guard has become a major test of presidential authority and judicial oversight.
At issue is whether a president can send troops into American cities without meeting strict legal conditions set by Congress—and whether courts will enforce those limits. In sharply worded dissents, two Ninth Circuit judges warned that normalizing military involvement in domestic law enforcement could erode the separation of powers and the nation’s long-standing resistance to using armed forces against its own citizens.
Their concern extends beyond a single administration: It questions how far future presidents may reach in claiming unilateral authority during civil unrest.
The Case And the Court’s Decision
The case, Newsom v. Trump, stems from California Governor Gavin Newsom’s challenge to the president’s June 2025 decision to federalize and deploy several thousand members of the state’s National Guard to Los Angeles during protests against federal immigration operations.
The governor argued that the deployment exceeded the president’s authority under federal law, which allows use of the National Guard only when regular federal forces are “unable to execute the laws of the United States.”
Earlier this month, a three-judge panel of the Ninth Circuit stayed a lower court’s order blocking the deployment.
Newsom asked the full court to rehear the case en banc, meaning by all active judges rather than a three-judge panel. On October 22, the court declined to do so.
In a statement accompanying the denial, Judge Marsha S. Berzon, joined by Chief Judge Mary Murguia and nine other judges, said the decision not to rehear the case “presents an issue of the gravest consequence: the peacetime deployment of military troops in American cities.”
She warned that the panel’s approach risked granting the president “extraordinary, unilateral powers” inconsistent with constitutional and statutory limits.
Judge Ronald M. Gould also issued a separate dissent, writing that the panel’s ruling “abdicated [the court’s] key responsibility” to ensure that Congress’s restrictions on presidential authority are enforced.
The Judges’ Warnings and What’s at Stake
The core dispute centers on how courts should interpret 10 U.S.C. §12406, which authorizes the president to federalize the National Guard in limited circumstances, such as invasion, rebellion, or when the regular armed forces cannot enforce federal law.
The panel held that a president’s determination under that statute should be given broad deference, provided it “reflects a colorable assessment of the facts and law within a range of honest judgment.”
Berzon argued that this interpretation effectively shields presidential decisions from meaningful judicial review.
“Absent judicial insistence on compliance with strict statutory limits on the use of the military for domestic purposes,” she wrote, “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.”
Her opinion traced the historical limits on using troops for civilian law enforcement back to the colonial era, citing the “traditional strong resistance of Americans to military intrusion into civil affairs.”
She contended that the Constitution assigns to Congress—not the president—the power to call forth the militia, and that judicial oversight is essential to ensure that statutory preconditions are met before troops are deployed on American streets.
Berzon cautioned that allowing presidents to act on their own determinations of necessity “invited presidents, now and in the future, to deploy military troops in response to the kinds of commonplace, short-lived, domestic disturbances whose containment conventionally falls to local and federal law enforcement units.”
Her statement closed with an especially pointed warning: “Normalizing the deployment of American troops on American streets at a hint of civil unrest will lead to profound consequences destructive to American society.”
Gould echoed those concerns, writing that “a case that determines when a President may federalize and deploy American troops into our own cities warranted a more extensive consideration.”
The decision not to rehear the case leaves the panel’s earlier ruling intact, though further proceedings on the merits are expected. The Ninth Circuit may decide to revisit the issue once a full record is developed.
The controversy arises amid a broader national debate over the limits of executive power and the role of the military in domestic affairs.
Berzon’s warning underscores a rare public split within the appellate court over those boundaries.
Whether her caution will influence future rulings remains to be seen, but her message was clear: the judiciary, she said, must “say what the law is” before the balance between civil authority and military power is permanently altered.
Expert Reactions
Claire Finkelstein, a professor of Law and Philosophy at the University of Pennsylvania, told Governing that deploying National Guard units from one state into another under federal authority is “really like, you know, a little bit like invading another country.”
Rachel Van Landingham, a professor of Law at Southwestern Law School and former U.S. Air Force lieutenant colonel, told Oregon Public Broadcasting earlier this month that “in L.A., it was already a stretch. Here, it’s beyond a stretch. There’s simply no facts to support any kind of straight-faced justification…that ICE agents are unable to do their job, and therefore they need military members to come in and help them do their job.”
Joseph Nunn, counsel in the Brennan Center for Justice, told Oregon Public Broadcasting that cross-state federalized Guard deployments are “unnecessarily inflammatory…It is, I think, insulting to say we’re going to send the National Guard from one state into another.”
James Baker, a law professor at Syracuse University and former chief judge of the U.S. Court of Appeals for the Armed Forces, said at a Center for a New American Security event on October 8, said regarding legal concerns around Guard deployments to U.S. cities: “One of the things I fear might be happening here is that the judge advocates in this instance may be providing proper means and methods advice, but I sense that the administration has gone…to the Department of Justice and asked the Office of Legal Counsel to override whatever advice is being given by the judge advocates.”
What People Are Saying
Judge Marsha S. Berzon’s statement regarding denial of rehearing en banc: “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.”
Judge Ronald M. Gould’s dissent from denial of rehearing en banc: “A case that determines when a President may federalize and deploy American troops into our own cities warranted a more extensive consideration. When Congress places limits on the President’s statutory powers, courts must enforce them.”
What Happens Next
The case returns to the same three-judge Ninth Circuit panel for full arguments on whether Trump lawfully invoked his authority to federalize the California National Guard, with California continuing to challenge the deployments in court.
The panel’s eventual decision will set an important precedent on how much discretion presidents have to use troops in domestic situations, and whichever side loses is expected to appeal to the Supreme Court.
Even if the immediate deployments end, the outcome will shape how future administrations—and possibly Congress—define the limits of presidential power to send military forces into American cities.
