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.
In adopting this "highly deferential" standard, the Ninth Circuit claimed to rely on the statutory history of domestic military deployment. But that history actually cuts in the opposite direction, against deference, as I discuss extensively in an article just published in the Emory Law Journal. The significance of that history extends beyond the recent decision in Newsom, which concerned the novel use of a little-known statute, 10 U.S.C. § 12406. The larger question is whether courts should defer to a president when they invoke the Insurrection Act, the main and most fearsome statute for domestic deployment of the military.
Legal commentators had previously recognized these stakes in the last significant decision on these domestic deployments. After the Supreme Court blocked the deployment of the Guard in Chicago last December, some called the decision a "pyrrhic victory;" as Jack Goldsmith put it, the Insurrection Act still "lie[s] in the wings." In Goldsmith's view, the Insurrection Act is "much more robust" than § 12406, and the "power authorized here is astounding," in large part because of the "greater claim to presidential deference" under the Insurrection Act. According to Goldsmith and co-author Bob Bauer, "The president will receive very significant deference from courts in his determination that an Insurrection Act predicate is satisfied." The Ninth Circuit's decision on deference only adds fuel to that blazing fire of deference for the Insurrection Act. That line of reasoning is, however, not well supported by the statutory history of the Insurrection Act.
Statutory History in Newsom
One of Congress's powers under Article I, Section 8 is to provide for "calling forth" the militia for domestic deployment. The most famous, broadest, and most well-used example of Congress exercising this power is the much-discussed Insurrection Act. But the 2025 deployments in Los Angeles, Portland, and Chicago concerned a heretofore obscure statute, 10 U.S.C. § 12406, which permits federalization of the National Guard in cases of (a) invasion, (b) rebellion, or (c) the president's inability, with the regular forces, to execute the laws of the United States. Newsom v. Trump dealt with the rebellion prong (which Ilya Somin discussed here), while the Supreme Court in Trump v. Illinois addressed the prong involving inability to execute the laws with regular forces.
But there is a specific question of deference. The baseline in statutory interpretation is no deference. Legislatures pass laws and then courts interpret them. When the executive exceeds a statute's authorization as interpreted by the judiciary, courts rule that the action is unlawful. That baseline can be displaced for various reasons. But the most straightforward reason is when the statutory text itself provides for deference, and this was the Ninth Circuit's focus.
Statutes may confer discretion on the president by using subjective terms, such as when a provision turns on what the president "judges," "considers," "deems," "determines," or "finds." For example, in Trump v. Hawaii, the Supreme Court concluded that the statute "exudes deference to the President" because the Immigration and Nationality Act, by its terms, authorizes the president to suspend the entry of aliens whenever he "finds" that their entry would be detrimental to the interests of the United States. As elaborated in my Emory Law Journal article, the text of the Insurrection Act confers deference in only one of the four conditions for its use, because it sometimes uses the term "considers" and sometimes does not.
In contrast, there are no subjective discretion-conferring terms in 10 U.S.C. § 12406 that could be construed to confer deference on the president. Both in its recent opinion and in its earlier stay order, the Ninth Circuit acknowledged as much:
"Section 12406 does not include express language making the President the sole judge of whether a required exigency exists. Consequently, if we were considering the text of § 12406 alone, we might conclude that the President's exigency determination is subject to review like certain other factual findings that are preconditions for executive action under a statute." Read More
