On October 23, a federal appeals court panel ruled 2-1 that President Trump’s seizing control of California’s National Guard in 2025 and then deploying the troops onto the streets of Los Angeles violated the U.S. Constitution. Judge Jennifer Sung, a Biden appointee, wrote the opinion, joined by Judge Eric Miller, a Trump appointee. Judge Mark Bennett, also a Trump appointee, dissented.

The court found no statutory basis for the order. The President’s determination that conditions in Los Angeles amounted to a “rebellion or danger of a rebellion against the authority of the Government of the United States” was not, the judges held, a “colorable assessment of the facts and law.” Although some provocateurs used the protests “as an excuse for violence and destruction,” the events were largely peaceful and within the capacity of local law enforcement. The order therefore “exceeded the President’s statutory authority and encroached on Congress’s … power,” thereby violating the constitutional separation of powers.