9th circuit

Three of the country’s most powerful judges met in Pasadena on Wednesday for a rare conclave that could rewrite the legal framework for President Trump’s expansive deployment of troops to cities across the United States.

The move to flood Los Angeles with thousands of federalized soldiers over the objection of state and local leaders shocked the country back in June. Five months later, such military interventions have become almost routine.

But whether the deployments can expand — and how long they can continue — relies on a novel reading of an obscure subsection of the U.S. code that determines the president’s ability to dispatch the National Guard and federal service members. That code has been under heated debate in courts across the country.

Virtually all of those cases have turned on the 9th Circuit’s decision in June. The judges found that the law in question requires “a great level of deference” to the president to decide when protest flashes into rebellion, and whether boots on the ground are warranted in response.

On Wednesday, the same three judge panel — Jennifer Sung of Portland, Eric D. Miller of Seattle and Mark J. Bennett of Honolulu — took the rare move of reviewing it, signaling a willingness to dramatically rewrite the terms of engagement that have underpinned Trump’s deployments.

“I guess the question is, why is a couple of hundred people engaging in disorderly conduct and throwing things at a building over the course of two days of comparable severity to a rebellion?” said Miller, who was appointed to the bench in Trump’s first term. “Violence is used to thwart the enforcement of federal law all the time. This happens every day.”

The question he posed has riven the judicial system, splitting district judges from appellate panels and the Pacific Coast from the Midwest. Some of Trump’s judicial appointees have broken sharply with their colleagues on the matter, including on the 9th Circuit. Miller and Bennett appear at odds with Ryan D. Nelson and Bridget S. Bade, who expanded on the court’s June ruling in a decision Monday that allowed federalized troops to deploy in Oregon.

Most agreethat the statute itself is esoteric, vague and untested. Unlike the Insurrection Act, which generations of presidents have used to quell spasms of violent domestic unrest, the law Trump invoked has almost no historical footprint, and little precedent to define it.

“It’s only been used once in the history of our country since it was enacted 122 years ago,” California Solicitor General Samuel Harbourt told the court Wednesday.

Attorneys from both sides have turned to legal dictionaries to define the word “rebellion” in their favor, because the statute itself offers no clues.

“Defendants have not put forward a credible understanding of the term ‘rebellion’ in this litigation,” Harbourt told the panel Wednesday. “We’re continuing to see defendants rely on this interpretation across the country and we’re concerned that the breadth of the definition the government has relied on … includes any form of resistance.”

The wiggle room has left courts to lock horns over the most basic facts before them — including whether what the president claims must be provably true.

In the Oregon case, U.S. District Judge Karin Immergut of Portland, another Trump appointee, called the president’s assertions about a rebellion there “untethered to the facts.”

But a separate 9th Circuit panel overruled her, finding the law “does not limit the facts and circumstances that the President may consider” when deciding whether to use soldiers domestically.

“The President has the authority to identify and weigh the relevant facts,” the court wrote in its Monday decision.

Nelson went further, calling the president’s decision “absolute.”

Upon further review, Sung signaled a shift to the opposite interpretation.

“The court says when the statute gives a discretionary power, that is based on certain facts,” she said. “I don’t see the court saying that the underlying decision of whether the factual basis exists is inherently discretionary.”

That sounded much more like the Midwest’s 7th Circuit decision in the Chicago case, which found that nothing in the statute “makes the President the sole judge of whether these preconditions exist.”

“Political opposition is not rebellion,” the 7th Circuit judges wrote. “A protest does not become a rebellion merely because the protestors advocate for myriad legal or policy changes, are well organized, call for significant changes to the structure of the U.S. government, use civil disobedience as a form of protest, or exercise their Second Amendment right to carry firearms as the law currently allows.”

The Trump administration’s appeal of that decision is currently before the Supreme Court on the emergency docket.

But experts said even a high court ruling in that case may not dictate what can happen in California — or in New York, for that matter. Even if the justices ruled against the administration, Trump could choose to invoke the Insurrection Act or another law to justify his next moves, an option that he and other officials have repeatedly floated in recent weeks.

The administration has signaled its desire to expand on the power it already enjoys, telling the court Wednesday there was no limit to where troops could be deployed or how long they could remain in the president’s service once he had taken control of them.

“Would it be your view that no matter how much conditions on the ground changed, there would be no ability of the district court or review — in a month, six months, a year, five years — to review whether the conditions still support [deployment]?” Bennett asked.

“Yes,” Deputy Assistant Atty. Gen. Eric McArthur said.

Bennett pressed the point, asking whether under the current law the militia George Washington federalized to put down the Whiskey Rebellion of 1794 could “stay called up forever” — a position the government again affirmed.

“There’s not a word in the statute that talks about how long they can remain in federal service,” McArthur said. “The president’s determination of whether the exigency has arisen, that decision is vested in his sole and exclusive discretion.”

President Trump has often locked horns with the 9th Circuit Court of Appeals, with the once left-leaning court putting a persistent drag on his first-term agenda.

And now, even after remaking the bench with his own appointees, the president is still tangling with the West Coast’s federal appellate court — a situation poised to boil over as the circuit juggles multiple challenges to his use of the National Guard to police American streets.

“I appointed the judge and he goes like that — I wasn’t served well,” Trump told reporters Sunday, lashing out at U.S. District Judge Karin Immergut of Portland after she temporarily blocked the deployment federalized troops.

“To have a judge like that, that judge ought to be ashamed of himself,” Trump said, referring to Immergut, who is a woman.

The president has long railed against judges who rule against him, calling them “monsters,” “deranged,” and “radical” at various points in the past.

Trump has also occasionally sniped at conservative jurists, including U.S. Supreme Court Chief Justice John Roberts, whom he called “disgraceful” after the court rejected his bid to overturn the 2020 election.

But this weekend’s spat marked a shift in his willingness to go after his own appointees — a turn experts say could become much sharper as his picks to the appellate bench test his ambition to put boots on the ground in major cities across the U.S.

“The fact that a pretty conservative judge ruled the way she did is an indication that some conservative judges would rule similarly,” said Ilya Somin, a law professor at George Mason University and a constitutional scholar at the Cato Institute.

The 9th Circuit handed the administration an early victory in the troop fight this spring, finding that courts must give “a great level of deference” to the president to decide whether facts on the ground warrant military intervention.

That ruling is set to be reviewed by a larger appellate panel, and could ultimately be reversed. The circuit is also now set to review a September decision barring federalized troops in California from aiding in civilian law enforcement, as well as Immergut’s temporary restraining order blocking the deployment over the weekend.

In the meantime, the 9th Circuit’s June decision has served as a guidepost for states seeking to limit what Oregon called a “nationwide campaign to assimilate the military into civilian law enforcement.”

“That decision is binding, and it does require a substantial degree of deference on the factual issues,” Somin said. “[But] when what the president does is totally divorced from reality, that limit is breached.”

Immergut appeared to agree, saying in her ruling that circumstances in Portland this fall were significantly different than those in L.A. in the spring. While some earlier protests did turn violent, she wrote, recent pickets outside Portland’s ICE headquarters have featured lawn chairs and low energy.

“Violence elsewhere cannot support troop deployments here, and concern about hypothetical future conduct does not demonstrate a present inability to execute the laws using nonmilitary federal law enforcement,” the judge wrote, addressing the 9th Circuit decision.

“The President is certainly entitled ‘a great level of deference,’” Immergut continued. “But ‘a great level of deference’ is not equivalent to ignoring the facts on the ground. … The President’s determination was simply untethered to the facts.”

But exactly where the appellate court may draw the line on presidential fact-finding is tricky, experts said.

“How much deference is owed to the president? That’s something we’re all talking about,” said John C. Dehn, a professor at Loyola University Chicago School of Law.

Whether courts can review the president’s judgment at all is a matter that splits even some of the president’s most conservative judicial picks from his current justice department attorneys.

So far, Trump has relied on an esoteric subsection of the U.S. Code for the authority to send soldiers on immigration raids and to control crowds of protesters.

Dehn and others have characterized that reading of the code as semantic and divorced from its legal context.

“They’re looking at the words in a vacuum and arguing the broadest possible meaning they could can think of,” Dehn said. “The administration is not engaged in good faith statutory interpretation — they’re engaged in linguistic manipulation of these statues.”

Immegur agreed, quoting Supreme Court precedent saying “[i]nterpretation of a word or phrase depends upon reading the whole statutory text.”

For some conservative legal scholars, Trump appointees’ willingness to push back on repeated deployments could signal a limit — or a dangerous new escalation in the administration’s attacks on jurists who defy them.

“It’s obvious the administration is trying to do this on a bigger scale,” Somin said. “Ideally we would not rely on litigation alone to deal with it.”

He’s never held public office or donned a judge’s robes, but an arch-conservative Los Angeles County attorney is racing toward confirmation on the 9th Circuit Court of Appeals, accelerating the once-liberal court’s sharp rightward turn under President Trump.

A competitive target shooter with a background in a cryptocurrency, Eric Tung was approached by the White House Counsel’s Office on March 28 to replace Judge Sandra Segal Ikuta, a Bush appointee and one of the court’s most prominent conservatives, who is taking senior status.

A new father and still a relative unknown in national legal circles, Tung found an ally in pal Mike Davis, a reputed “judge whisperer” in Trump’s orbit. Speaking to the New York Post in mid-March, Davis touted Tung as Ikuta’s likely successor.

The Pasadena lawyer appeared on a Federalist Society panel at the Reagan Library this year, debating legal efforts to restrain “ ‘agents’ of the left.”

“Eric is a Tough Patriot, who will uphold the Rule of Law in the most RADICAL, Leftist States like California, Oregon, and Washington,” Trump wrote on Truth Social when the nomination was announced in July.

The response from California senators was apoplectic.

“Mr. Tung believes in a conception of the Constitution that rejects equality and liberty, and that would turn back the clock and continue to exclude vast sections of the American public from enjoying equal justice under the law,” said Sen. Alex Padilla.

In the past, senators from a potential judge’s home state could block a nomination — a custom Trump exploded when he steamrolled Washington senators to install Eric D. Miller to the 9th Circuit in 2019.

Tung has been tight-lipped about his ascent to the country’s busiest circuit. He did not respond to inquiries from The Times.

A Woodland Hills native and conservative Catholic convert, Tung made a name for himself as a champion of the crypto industry and elegant legal writer, frequently lecturing at California law schools and headlining Federalist Society events.

After graduating from Yale and the University of Chicago Law School, he clerked for Supreme Court Justices Antonin Scalia and Neil Gorsuch before joining the white-shoe law firm Jones Day, a feeder to the Trump Justice Department.

Many lauded the nomination when it was first announced, including the National Asian Pacific American Bar Assn.

“Eric is a highly regarded originalist who would follow in the footsteps of Justice Scalia, for whom he clerked,” said Carrie Campbell Severino, president of the Judicial Crisis Network, a conservative legal advocacy group.

Groups on the left, including Alliance for Justice, Demand Justice and the National Council of Jewish Women, have lobbied against putting Tung on the appellate court.

If confirmed, Tung will be Trump’s 11th appointment to the 9th Circuit, a court the president vowed to remake when he first took office in 2017.

During Trump’s first term, Judge Ikuta was part of a tiny conservative minority on the famously lopsided bench, a legacy of President Jimmy Carter’s decision to double the size of the circuit and pack it with liberal appointees.

Many Trump judges ruffled feathers at first, and most have shown themselves to be “pretty conservative and pretty hard nosed,” said Carl Tobias, a professor at the University of Richmond School of Law.

Their ranks include the former Hawaii Atty. Gen. Judge Mark J. Bennett, as well as the circuit’s first openly gay member, Judge Patrick J. Bumatay.

Trump’s appellate appointees helped deliver him several controversial recent decisions, including the finding in June that Trump had broad discretion to deploy the military on American streets. Another 9th Circuit ruling this month found that the administration could all-but eliminate the country’s refugee program via an indefinite “pause.”

But they’ve also clashed sharply with the Justice Department’s attorneys, even in cases where the appellate panel ultimately sided with the administration.

That’s what the president is trying to avoid this time around — particularly with his picks headed in the west, experts said.

“People on the far right are pushing [Trump] to have people who will be ‘courageous’ judges — in other words, do things that are really unpopular that Trump likes,” Tobias said.

Tung may fit the bill. In addition to his crypto chops and avowed support for constitutional originalism, he has been an ardent defender of religious liberty and an opponent of affirmative action. He shoots competitively as part of the International Defensive Pistol Assn.

Both Tung and his wife Emily Lataif have close ties to the anti-abortion movement. Tung worked extensively with the architect of Texas’ heartbeat bill; Lataif interned for the Susan B. Anthony List, an anti-abortion policy group that seeks to make IUDs and emergency contraception illegal and opposes many forms of in-vitro fertilization.

“Emily is the epitome of grace under pressure, as was evidenced … when she and Eric had to evacuate their home during the California wildfires, only days after welcoming their first child,” Severino said. “She’s worked at the highest levels, from the White House to the executive team at Walmart, and her talent is matched only by her kindness and love for her family.”

When asked by Sen. Chris Coons of Delaware whether he believed IVF was protected by the Constitution, Tung declined to answer.

It wasn’t the only question the nominee ducked. Democratic members of the Senate Judiciary Committee accused Tung of giving only “sham answers” to their inquiries, both in chambers and through written follow-ups.

After pressing him repeatedly for his position on landmark cases including Obergefell vs. Hodges and Lawrence vs. Texas — privacy right precedents Justice Clarence Thomas wrote should be reconsidered after the fall of Roe vs. Wade — Sen. Adam Schiff pushed the nominee for his opinion on Loving vs. Virginia, the 1967 case affirming interracial marriage.

“Was that wrongly decided?” the California lawmaker asked the aspiring judge.

“Senator, my wife and I are an interracial couple, so if that case were wrongly decided I would be in big trouble,” Tung said.

“You’re willing to tell us you believe Loving was correctly decided, but you’re not willing to say the other decisions were correctly decided,” Schiff said. “That seems less originalist and more situational.”

The 9th Circuit Court of Appeals heard arguments Tuesday questioning both President Trump’s decision to deploy federal troops to Los Angeles and the court’s right to review it, teeing up what is likely to be a fierce new challenge to presidential power in the U.S. Supreme Court.

A panel of three judges — two appointed by President Trump, one by President Biden — pressed hard on the administration’s central assertion that the president had nearly unlimited discretion to deploy the military on American streets.

But they also appeared to cast doubt on last week’s ruling from a federal judge in San Francisco that control of the National Guard must immediately return to California authorities. A pause on that decision remains in effect while the judges deliberate, with a decision expected as soon as this week.

“The crucial question … is whether the judges seem inclined to accept Trump’s argument that he alone gets to decide if the statutory requirements for nationalizing the California national guard are met,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law.

The questions at the heart of the case test the limits of presidential authority, which the U.S. Supreme Court has vastly expanded in recent years.

When one of the Trump appointees, Judge Mark J. Bennett of Honolulu, asked if a president could call up the National Guard in all 50 states and the District of Columbia in response to unrest in California and be confident that decision was “entirely unreviewable” by the courts, Assistant Atty. Gen. Brett Shumate replied unequivocally: “Yes.”

“That couldn’t be any more clear,” Shumate said. “The president gets to decide how many forces are necessary to quell rebellion and execute federal laws.”

“It’s not for the court to abuse its authority just because there may be hypothetical cases in the future where the president might have abused his authority,” he added.

California Deputy Solicitor General Samuel Harbourt said that interpretation was dangerously broad and risked harm to American democratic norms if upheld.

“We don’t have a problem with according the president some level of appropriate deference,” Harbourt said. “The problem … is that there’s really nothing to defer to here.”

The Trump administration said it deployed troops to L.A. to ensure immigration enforcement agents could make arrests and conduct deportations, arguing demonstrations downtown against that activity amounted to “rebellion against the authority of the Government of the United States.”

State and local officials said the move was unjustified and nakedly political — an assessment shared by Senior District Judge Charles R. Breyer, whose ruling last week would have handed control of most troops back to California leaders.

Breyer heard the challenge in California’s Northern District, but saw his decision appealed and put on hold within hours by the 9th Circuit.

The appellate court’s stay left the Trump administration in command of thousands of National Guard troops and hundreds of Marines in L.A. through the weekend, when demonstrators flooded streets as part of the nationwide “No Kings” protests.

The events were largely peaceful, with just more than three dozen demonstrators arrested in L.A. Saturday and none on Sunday — compared to more than 500 taken into custody during the unrest of the previous week.

Hundreds of Marines still stationed in L.A.”will provide logistical support” processing ICE detainees, Pentagon spokesman Sean Parnell said in a statement Tuesday. Under last week’s executive order, National Guard troops will remain deployed for 60 days.

Arguing before the appellate panel Tuesday, Shumate said the military presence was necessary to defend against ongoing “mob violence” in L.A. streets.

“Federal personnel in Los Angeles continue to face sustained mob violence in Los Angeles,” the administration’s lawyer said. “Unfortunately, local authorities are either unable or unwilling to protect federal personnel and property.”

Harbourt struck back at those claims.

“[Violence] is of profound concern to the leaders of the state,” the California deputy solicitor general said. “But the state is dealing with it.”

However, the three judges seemed less interested in the facts on the ground in Los Angeles than in the legal question of who gets to decide how to respond.

“In the normal course, the level of resistance encountered by federal law enforcement officers is not zero, right?” Judge Eric D. Miller of Seattle asked. “So does that mean … you could invoke this whenever?”

While the appellate court weighed those arguments, California officials sought to bolster the state’s case in district court in filings Monday and early Tuesday.

“The actions of the President and the Secretary of Defense amount to an unprecedented and dangerous assertion of executive power,” California Atty. Gen. Rob Bonta wrote in a motion for a preliminary injunction.

Marines push back anti-ICE protesters in front of the Federal Building during “No Kings Day” in Downtown on Saturday.

(Carlin Stiehl/Los Angeles Times)

“The President asserts that [the law] authorizes him to federalize State National Guard units and deploy armed soldiers into the streets of American cities and towns whenever he perceives ‘opposition’ or ‘disobedience of a legal command,’” the motion continued. “He then asserts that no court can review that decision, assigning himself virtually unchecked power.”

The president boasted he would “liberate Los Angeles,” during a speech to troops at Fort Bragg last week.

In court, Bonta called the deployment a “military occupation of the nation’s second-largest city.”

Los Angeles officials also weighed in, saying in an amicus brief filed Monday by the City Attorney’s office that the military deployment “complicates” efforts to keep Angelenos safe.

“The domestic use of the military is corrosive,” the brief said. “Every day that this deployment continues sows fear among City residents, erodes their trust in the City, and escalates the conflicts they have with local law enforcement.”

The appellate court largely sidestepped that question, though Bennett and Judge Jennifer Sung in Portland appeared moved by Harbourt’s argument that keeping guard troops in L.A. kept them from other critical duties, including fighting wildfires.

“The judges were sensitive to that, and so if they’re ultimately going to land on a ‘no’ for the troops, they’ll do it sooner rather than later,” said professor Carl Tobias of the University of Richmond. “If they’re persuaded I think they’ll move fast.”

With the issue all but certain to face further litigation and a fast-track to the Supreme Court, observers said the 9th Circuit’s decision will influence how the next set of judges interpret the case — a process that could drag on for months.

“Both sides seem in a hurry to have a decision, but all [the Supreme Court] can do this late in the term is hear an emergency appeal,” Tobias said. “Any full-dress ruling would likely not come until the next term.”