Last Updated on September 10, 2025 by The HD Post Staff

CALIFORNIA – U.S. Senators Adam Schiff and Alex Padilla (both D-Calif.), Dick Durbin (D-Ill.) and 18 others filed an amicus brief, September 9, with the Ninth Circuit Court of Appeals in a lawsuit against President Donald Trump over the alleged misuse of the U.S. military.

California sued after Trump deployed thousands of National Guard troops and Marines to Los Angeles during recent anti-immigration protests without state or local approval.

U.S. District Judge Charles Breyer ruled that the deployment was illegal in California, but the Ninth Circuit’s pending review could affect future cases in other states, highlighting the need for clarification on the limits of presidential power.

In the brief, the lawmakers noted that past presidents only federalized the National Guard when governors refused to enforce or directly defied federal law.

“Here, in stark contrast, there was no directive from Governor Newsom to federal or state law enforcement to flout federal law. Rather, Governor Newsom and Los Angeles Mayor Karen Bass indisputably acted to quell the very civil unrest that the President claims triggered his mobilization of the National Guard,” the brief states.

Tenth Amendment limits presidential authority

The senators expressed concern about Trump’s recent deployment of state militias to Washington, D.C., and his stated intent to send them to other cities, including Chicago and Baltimore.

Trump indicated he might send National Guard troops to Baltimore and Chicago for immigration enforcement and to combat what he described as rampant crime in those cities.

However, Schiff, Padilla, and the other senators argue that the Tenth Amendment prohibits a president from commandeering state officials to enforce federal programs.

“The Constitution expressly reserves power over the militia (i.e., the National Guard) to Congress, not the President. Through Section 12406, Congress delegated to the President the power to federalize the National Guard, but only under certain limited circumstances not present here,” the brief says.

Ninth Circuit’s interpretation challenged

The lawmakers argue that the Ninth Circuit’s broad deference to the president under Section 12406 raises serious doubts about its compliance with the Tenth Amendment and the separation of powers.

They contend the interpretation is in error and urge the court to reverse it.

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