I recently wrote about the Ninth Circuit's decision in Newsom v. Trump, which ruled that Trump's federalization of the California National Guard last year, was illegal. Previously I assessed the Supreme Court's ruling in the closely related case of Trump v. Illinois. Today, we have a guest post on these and related issues, by Professor Joshua Braver of the University of Wisconsin. Josh is one of the nation's leading experts on the law regulating domestic use of the armed forces, and my coauthor on two articles about exclusionary zoning (see here and here).
The Volokh Conspiracy and I are pleased to be able to feature his post on this extraordinarily important issue. It is cross-posted with the Just Security site. What follows below is written by Josh Braver, not me (Ilya Somin):
On October 23, in Newsom v. Trump, the Ninth Circuit struck down President Donald Trump's June 2025 federalization of the National Guard in Los Angeles. Although I agree with the result, I disagree with its reasoning on deference. The issue is whether courts should defer to the president, that is, give a president significant leeway in their assessment of the facts on the ground and whether those facts meet the statutory criteria for deploying the military. The Ninth Circuit decided to be, in its words, "highly deferential" in both its decision on Los Angeles and its decision on federalizing the Guard in Portland. That line of reasoning also influenced the Seventh Circuit's decision to give "great deference" in the Chicago case.
