From yesterday's decision by Judges Mark Bennett, Eric Miller, and Jennifer Sung in Newsom v. Trump, granting a stay of the district court's injunction pending appeal:
[U]nder longstanding precedent interpreting the statutory predecessor to 10 U.S.C. § 12406 [which authorizes the President to federalize the National Guard], our review of that decision must be highly deferential. Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when "the President is unable with the regular forces to execute the laws of the United States."
Additionally, the Secretary of Defense's transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to "issue all orders in the name of the Governor," Cal. Mil. & Vet. Code § 163—likely satisfied the statute's procedural requirement that federalization orders be issued "through" the Governor….
The court rejected the defendants' argument that the President's decision "is not justiciable under the political question doctrine," and thus left entirely to the President (with review only through the political process). But the court concluded that "The history of Congress's statutory delegations of its calling forth power, and a line of cases beginning with Martin v. Mott (1827), interpreting those delegations, strongly suggest that our review of the President's determinations in this context is especially deferential." The court acknowledged that this deference is not unlimited:
