Judge Breyer's Decision About Trump & The National Guard

A few bad apples don't spoil the majority's right to protest peacefully

Judge Charles Breyer, a federal judge in San Francisco, ruled Thursday evening that the administration had unlawfully federalized the National Guard and sent them onto the streets of Los Angeles. It took the Trump administration about a nanosecond to appeal his decision. Then, the Ninth Circuit Court of Appeals promptly entered an administrative stay, which means that control of the Guard, which Judge Breyer had restored to California Governor Gavin Newsom, is back in Donald Trump’s hands, at least for a brief period of time while a three-judge panel of the Court of Appeals considers the case.

That’s the state of play as we enter the weekend, where “No Kings” marches will be held across the country on Saturday. That’s the same day Trump is throwing his show-of-dictator-like-strength military parade, ostensibly to celebrate the 250th anniversary of the Army, although it also coincides with his own 79th birthday. He’s finally getting the military parade he always wanted, and lucky us, we get to pay for it. According to NBC reporting, it’s expected to cost as much as $45 million, and up to $16 million of that will be what it costs to repair streets in the nation’s capital after tanks roll over them. So, clearly, spending that is far more necessary than cancer research or free lunches for schoolchildren.

Tonight, ahead of tomorrow, which may prove to be a pivotal day for our democracy, we turn to the legal question of whether the ruling by Judge Breyer, the younger brother of now-retired Supreme Court Justice Stephen Breyer, will stand up on appeal, first to the Ninth Circuit Court of Appeals, and likely to the Supreme Court as well.

The issue in this case is another manifestation of Trump’s power grab for the presidency. The ultimate outcome will turn on whether the Supreme Court is willing to walk further down the path it is already treading towards creating a maximalist all-powerful presidency at the cost of the ability of the other two branches of government to play the role in providing checks and balances to abuses of power that the Founding Fathers assigned to them. Or to be more pointed about it, will conservative justices on the Supreme Court go all in on the unitary executive theory, given that doing so could mean Trump is our last duly and democratically elected president, at least for a while?

This case is at the familiar stage we are now used to—early on, where a party (here, California) asks for a temporary restraining order to preserve the status quo while the litigation gets underway. California has to prevail on four points to get its order: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest.

Judge Breyer’s decision went further than what California asked for. They wanted Judge Breyer to keep federalized National Guard members from participating in civilian law enforcement and immigration enforcement. Instead, he rejected Trump’s decision to use Title 10 Authorities, the part of our legal code that covers the military, to “federalize” California National Guard troops, taking them out of the governor’s control and into his own. (This decision doesn’t apply to the Marines, and at least in the hearing Thursday, the Judge seemed less inclined to believe he had authority to order them out of Los Angeles, because they are already under the president’s control. We’ll set that issue aside for another day, as California has raised that issue as well but it’s still undecided).

Trump relied on legal provisions that permit him to federalize the guard if “(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws of the United States.” The Judge’s opinion includes a comprehensive layout of what is happening on the ground in Los Angeles—good for dispelling disinformation being spread by people who insist the entire city is in flames. The opinion also comprehensively reviews law and history before arriving at the conclusion that you would expect, even if you knew little about the law: that a president can’t pretend there’s a rebellion going on when there isn’t in order to interfere with a state’s ability to exercise police powers free of federal interference.

Tonight’s post is a long one, but this is an important judicial decision, one we’re likely to live with for a while as it is appealed. So I hope you’ll stick with me!

In addition to arguing that there wasn’t a rebellion or other situation that prevented execution of the laws of the United States, California argues that Trump exceeded his lawful authority because he didn’t comply with the part of the law that says a federalization order has to be “issued through the governors of the States” and because he violated the Posse Comitatus Act.

The factual background of the case begins on page 1 and continues through page 8. A few key points:

• Los Angeles Police (LAPD) Chief Jim McDonnell stated that before ICE started its raids, “federal officials did not brief his department, which made it difficult to respond to the mobs of people who began to protest.”

• Governor Newsom reportedly stated that the “[c]ontinued chaotic federal sweeps … to meet an arbitrary arrest quota are as reckless as they are cruel.”

• Mayor Karen Bass told reporters that she received no notice that the raids were to be conducted, and that the raids “sow[] a sense of chaos in our city, and a sense of terror.”

• At the point in time on June 7 when Trump federalized the Guard, with protests specifically targeting ICE immigration raids underway, LAPD and the Los Angeles Sheriff’s Department (LASD) handled protests, reassigning personnel as necessary, and never indicated the need for a federal presence.

• But Trump’s memo on to the Secretaries of DHS and DOD, and to the Attorney General related that “[n]umerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by [ICE] and other United States Government personnel,” and that “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”

• The presence of the federalized troops made the situation worse, not better.

• As to the issue of the governor's role in federalizing the guard, in this case, DOD advised the Adjutant General of the California National Guard that 2,000 troops were being put under the president’s control, and the governor only learned about it from him, after the fact.

The Court rejected the administration's argument that a judge can’t second-guess the president on rebellion

The administration argued that the determination Trump made under the statute is reserved “to the President’s discretion alone.” Judge Breyer resolved that questions first, because it’s a “threshold issue.” If the court doesn’t have the ability to decide these issues it has to dismiss the case. Lawyers call this “justiciability.”

This part of the decision is very elegant, given recent suggestions by MAGA, including members of Congress, that judges are staging a coup or at least acting beyond their authority. So Judge Breyer starts by reviewing bedrock constitutional principles, like the duty judges have to decide what the law is, going back to 1803. He concludes that federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”

Judge Breyer then explains that before a president can exercise the discretion the law gives to him to decide how many National Guard members or units to federalize if there is a rebellion, whether or not there in fact is a rebellion has to be established. And that’s where the courts come in. It is only after that factual matter, whether there is a rebellion, is established, that a president has discretion he can exercise that cannot be questioned. It’s like a math problem where you have to perform the operations in the correct order. Courts can review the threshold question of whether there is a rebellion, and only if they agree, can a president federalize the California Guard at will.

This part of the decision is at the core of Judge Breyer’s opinion. In a delightful slap at the Supreme Court’s recent reliance on “history” to justify its decisions, Justice Breyer moves beyond the modern-day definitions of rebellion offered by the parties and turns to dictionaries in use when the law was written.

Breyer writes that “the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.” He also notes that “Courts have repeatedly reaffirmed that peaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment … just because some stray bad actors go too far does not wipe out that right for everyone.” And so, he concludes that the idea that this is a “‘rebellion against the authority of the Government of the United States’ is untenable and dangerous.”

At bottom, four factors have to be in play before a protest becomes a rebellion. It must be violent, organized, open and avowed, and against the government as a whole. Given this standard, the Judge concludes that “The protests in Los Angeles fall far short of ‘rebellion.’”

What about the governor’s role? While the law, at least on its face, doesn’t require a governor’s consent, Trump’s June 7 memo “specifically ordered Secretary Hegseth to ‘coordinate with the Governors of the States’” and they failed to do so. The failure to issue the orders through Newsom means the federal government failed to comply with the law.

The Posse Comitatus Act

Judge Breyer wrote that since he had already decided the issue of following the statute regarding federalizing Guard troops against the government, there was no need to decide whether the Posse Comitatus Act, which prohibits the use of the military for domestic law enforcement, had been violated. This early in the litigation, he wrote, that would be a difficult decision because the record isn’t complete.

Friday evening, there were reports and video of two Marines possibly detaining someone who entered a restricted area. The early report was that it was a veteran who was trying to access a VA facility. The facts aren’t yet clear, but be sure the lawyers for California are paying close attention, as this argument will loom large if this case moves forward, particularly in regards to the deployment of Marines.

Tenth Amendment

It’s odd to hear Republicans, the party of states’ rights, advocating for the federal government to take over a state. Of course, it’s only California.

But Judge Breyer pointed out that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws. Quite the contrary, the Founders reserved that power, and others, to the states in the Tenth Amendment.”

That means that there is no reason for the federal government to intervene when the state is in the process of bringing a situation under control. Judge Breyer cited an 1878 Supreme Court case out of Kentucky, that held, “Whether the policy thus pursued by the State is wise or unwise, it is not the province of the national authorities to determine. That belongs to each State, under its own sense of duty, and in view of the provisions of its own Constitution.” It’s tough to dive deeper into history than that. This is a decision written by someone who is deeply conversant with how the Supreme Court operates these days. The opinion is written to beat them at their own history and tradition games and survive appeal, lest Justices Alito and Thomas find themselves arguing that states no longer have these rights—in sharp contrast to the position they took when they decimated American women’s abortion rights, leaving them up to the states in Dobbs.

Now, we wait on the Ninth Circuit.

Kristi Noem gave the game up at the press conference Thursday, the one where California Senator Alex Padilla was tackled and handcuffed, although apparently, “not arrested.” Noem said she was going to "liberate” Los Angeles "from the socialists and the burdensome leadership this governor and mayor have placed on this country and this city.” That’s not a rebellion by people on the streets in Los Angeles. It’s a takeover by the federal government.

Lawyers for the State will likely ask the court to amend the evidentiary record in the case to include Noem’s comments. They make this situation crystal clear. This is all about presidential power and its centralization into Donald Trump’s hands, the same issue we’ve been confronting since the day he took the oath of office and promptly issued a series of executive orders that violated that oath. The question is, will the Supreme Court continue to defend Donald Trump at the expense of the people?

Tonight’s post is an example of what makes Civil Discourse different. I bring 25 years of DOJ experience to my legal and political analysis, pulling from real source material—pleadings, opinions, and more. Just facts and insight to help you understand the stakes and think for yourself.

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We’re in this together,

Joyce