It's not looking good for Gavin Newsom in the faceoff with President Trump over what a federal judge agreed last week was the illegal federalizing of National Guard troops in Los Angeles.

While US District Court Judge Charles Breyer fully agreed that Trump had acted outside the limits of his executive power in defying a state governor and sending the National Guard in to quell a protest — or, ostensibly, to "protect" federal immigration agents from protesters — a three-judge panel of the Ninth Circuit Court of Appeals does not seem so inclined.

As the Chronicle reports from the federal appeals court, where a video hearing took place in the last couple of hours, the three judges — Trump appointees Judge Mark Bennett and Judge Eric Miller and Biden appointee Judge Jennifer Sung — seemed skeptical of the state's position that Trump acted illegally.

"[Even if there were] reasons why this decision [by the president] should have been counseled against, was there anything [in the law] saying he was not entitled to make these decisions?” Judge Sung asked the state's Deputy Solicitor General Samuel Harbourt.

And Judge Bennett asked, "Even if we were to agree with you that we have some ability to review the president’s actions, where [under federal law] is the president required to have judicial review that he considered lesser measures [than deploying the National Guard]?"

Harbourt maintained that the president's move was a "grave threat to this country’s democratic tradition."

While presidents have, in the past, deployed National Guard troops in times of civil unrest — Presidents John F. Kennedy and Lyndon Johnson both did this in Alabama to get around anti-desegregation Governor George Wallace, as the New York Times notes — Trump did so using a rarely used law that requires the move go through a state governor. Gavin Newsom insists Trump never cleared the mobilization with him, and insists that it only inflamed the protests in LA last weekend.

Breyer's 36-page ruling last Thursday night contended that Trump's "actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution." He also wrote that the deployment of troops set a "dangerous precedent for future domestic military activity."

Other states, particularly those with Democratic leaders but even those with Republicans in charge, should fear Trump's future use of military troops in their backyards and where that could lead, should the Ninth Circuit decide that he has the right to do as he likes.

"The deployment of the military to police local protests is not only unlawful, but also it inflames protests and interferes with local governments’ ability to safely and effectively respond to those protests,” says San Francisco Chief Deputy District Attorney Yvonne Meré in an amicus brief filed in this case.

The State of California seems all but certain to appeal if the three Ninth Circuit judges rule against it — which they are likely to do within days. As the Chronicle notes, Judge Breyer has another hearing scheduled in the case for Friday, at which time the state would have a chance to argue for a longer-lasting preliminary injunction against the Trump administration, and the appelate judges are aware of that.

The state could seek an en banc appeal by an 11-judge panel at the Ninth Circuit, or take the case to the Supreme Court — which has previously, with some exception, taken a broad view of executive power under the thinking of Chief Justice John Roberts.

Previously: National Guard Presence to Remain In LA Into Next Week After Ninth Circuit Blocks Lower Court Order

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