“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Judges Mark Bennett and Eric Miller, who were nominated by Donald Trump to the Ninth Circuit court of appeals, formed the majority of a unanimous unsigned opinion that ruled that Trump can keep control of the California National Guard, which is aggressively doing immigration work in LA. The decision reversed a district court order that ruled instead for Governor Newsom. The third judge on the June 2025 appellate panel in Newsom v Trump was Biden nominee Jennifer Sung.
What happened in this case?
As part of his aggressive immigration tactics in California, Donald Trump mobilized and took control of four thousand California National Guard troops, claiming it was needed to protect federal property and prevent interference with federal immigration agents engaged in detention and deportation of immigrants. Governor Gavin Newsom filed suit in federal court, contending that Trump did not have authority to take such control. District judge Charles Breyer, the brother of retired Supreme Court Justice Stephen Breyer, agreed and wrote a lengthy opinion concluding that Trump must return control of the Guard to the state.
The federal government appealed the case to the Ninth Circuit.
How did Trump judges Bennett and Miller and the Ninth Circuit rule and why is the result harmful?
All three appellate judges on the panel, including Trump judges Bennett and Miller, joined in an unsigned opinion that ruled that it appeared Trump had the authority to seize control of the state national guard in connection with the immigration protests. The court rejected Trump’s claim that courts had no authority whatsoever to review Trump’s actions. But the court noted that the violent conduct of some protesters had hindered immigration enforcement, and this was sufficient for the judiciary to defer to Trump’s decision to invoke a rarely used law allowing a president to call up a state’s national guard. The court maintained that the judiciary should be “highly deferential” to a president on this issue.
Since the previous ruling by Breyer was only on a temporary restraining order, this case will continue, either before him or the full Ninth Circuit or the Supreme Court. In any event, the decision is harmful in its deference to Trump on the issue of whether Trump had the authority to call up the National Guard in this instance. The ruling also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.