CREATORS: Courts Not Compelled to Accept 'Obviously Absurd' Presidential Directive

Matthew T. Mangino
CREATORS
July 1, 2025

The Ninth Circuit Court of Appeals granted a stay of a temporary restraining order (TRO) granted to California Governor Gavin Newsom and the State of California, enjoining the president from federalizing the California National Guard.

At first blush, it appears to be a resounding victory for the Trump administration. However, this matter is far from over.

First, seeking a TRO is only the first step in California's challenge. A TRO imposes temporary relief to a party pending a trial on the underlying challenge. It is intended to maintain the status quo during the pendency of a lawsuit.

In this case, the underlying issue is whether the president has the constitutional, or statutory, authority to call into federal service the California National Guard.

Federal District Court Judge Charles Breyer, following a hearing, granted Governor Newsom a TRO finding that California had suffered irreparable harm because mobilization of the National Guard, "inflames tensions with protesters" and "deprives the state of the use of its troops for two months."

That was the order that the Trump administration appealed. Although the TRO is stayed, the underlying claim does not go away. The Ninth Circuit granted Trump's request to stay the TRO. But in doing so, the court made clear, "We disagree with Defendants' primary argument that the President's decision to federalize members of the California National Guard under 10 U.S.C. Section 12406 is completely insulated from judicial review."

That is extremely important. The Trump administration had argued that Section 12406 "completely precludes judicial review." The Court was sure to point out, "(W)e disagree with Defendants' contention that Section 12406 completely precludes judicial review of the President's determination that a statutory precondition exists."

The Court of Appeals provided a detailed history of Section 12406. Congress first delegated its constitutional power to activate state militias to the president through the Militia Act of 1792. Congress renewed that delegation of authority in the Militia Act of 1795. The 1795 Act was a precursor to the Militia Act of 1903. Like Section 12406, the 1795 Act contained a predicate "invasion" condition: "(W)henever the United States shall be invaded, or be in imminent danger of invasion ... it shall be lawful for the President of the United States to call forth such number of the militia ... as he may judge necessary to repel such invasion."

The Supreme Court interpreted the Militia Act of 1795 in an 1827 case known as Martin v. Mott. The case arose out of President James Madison's decision to call the New York militia into federal service during the War of 1812.

Jacob Mott, a New York militiaman, refused to turn up for service. He was court-martialed and fined, and the State seized his property to satisfy the debt. Mott then brought an action for the return of his property in state court, arguing that the seizure was illegal because former President James Madison's order federalizing the militia was invalid.

The U.S. Supreme Court rejected that argument. The Court began by explaining that the Constitution gave the authority to use the militia to Congress, but Congress gave the power to the president when the "exigency" of an invasion had arisen." The Court recognized that the delegated power was, "in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion."

"The Supreme Court refused to entertain the (militia) member's contention that the President had misjudged the danger of such an invasion, explaining that 'the authority to decide whether the exigency has arisen belongs exclusively to the president,' whose decision 'is conclusive upon all other persons.'"

The decision in Martin does not compel the current Supreme Court to accept the federal government's position that President Trump could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was "obviously absurd" or "made in bad faith."

The Court concluded that it could not be compelled to support every decision of the president.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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