JUST IN: 9th Circuit declines en banc rehearing of ruling letting Trump use National Guard in L.A.

[In It to Win It]

🚨 This is a separate case from Oregon v Trump about the National Guard deployment in Portland. This case is California v Trump.

There is still both (1) the pending en banc call in the Portland case; & (2) the merits appeal in the California case. Judge Berzon’s “statement” may well be an effort by a sizeable chunk of the court to nudge their colleagues in one or both of those contexts.

What comes next there is what matters.

— Steve Vladeck (@stevevladeck.bsky.social) 2025-10-23T01:59:52.920Z

JUST IN: 11 9th Circuit judges dissent* as appeals court declines en banc rehearing of ruling letting Trump use National Guard in L.A. Some judges may keep powder dry for Oregon case w/weaker facts for Trump admin. Doc: cdn.ca9.uscourts.gov/datastore/op... Earlier: www.politico.com/news/2025/06...

— Josh Gerstein (@joshgerstein.bsky.social) 2025-10-23T01:37:06.245Z

Why the asterisk? I think the 11-judge opinion is not labeled as a dissent because it was written by a senior judge and joined by 3 other senior judges and they're not allowed to vote on motions to take a case en banc.

— Josh Gerstein (@joshgerstein.bsky.social) 2025-10-23T01:46:28.186Z

You can only formally “dissent” from a denial of rehearing en banc if you are an active—as opposed to senior—circuit judge, because the senior judges don’t get to vote.

But they’re allowed to write “statements” respecting a denial of rehearing en banc, and active judges can join them. That’s this.

— Steve Vladeck (@stevevladeck.bsky.social) 2025-10-23T02:01:43.990Z

So is this good or bad for the State opposing Trump?

— Karen Langsam (@langsam-karen.bsky.social) 2025-10-23T02:04:18.519Z

Bad, but potentially very tentatively so.

— Steve Vladeck (@stevevladeck.bsky.social) 2025-10-23T02:04:49.923Z