Judge Issues Sweeping Smackdown of National Guard Takeover

On Thursday night, U.S. District Judge Charles Breyer ruled that Donald Trump unlawfully federalized the California National Guard in order to quell mass protests against his administration’s immigration raids in Los Angeles. Breyer, the brother of former Justice Stephen Breyer, issued a temporary restraining order attempting to demobilize the National Guard and return control over the force to California Gov. Gavin Newsom. His decision was promptly paused by an appeals court, which will review it at an emergency hearing on Tuesday.

Dahlia Lithwick and Mark Joseph Stern discussed Breyer’s unusually courageous move, as well as the looming prospect of Supreme Court intervention, on this week’s episode of Amicus. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: I think Judge Breyer took to heart his responsibility to tell the truth. He was crystal clear not only about the law, but also about what is actually happening on the ground in California, and about not believing something just because the government said it.

Mark Joseph Stern: You can see that in the many, many pages of his written opinion that are simply a factual recitation of what is truly happening in L.A., as contrasted with what the government claims is happening. So, for instance, one of the administration’s central arguments is that there is a “rebellion” taking place on the ground against the government, such that Trump has the right to federalize California’s National Guard to enforce “order,” even over the objection of Gov. Newsom. Judge Breyer essentially said: Wait a minute. Is there a rebellion, or is this in fact a largely peaceful protest protected by the First Amendment? And he concluded that there was no rebellion at all—just citizens of this country peacefully assembling to express their opposition to the government’s immigration raids, which is clearly protected by the First Amendment.

The government is attempting to round that up to a “rebellion” by highlighting a few isolated instances of violence and then using them to tarnish the entire assembly. But Breyer held that a handful of individuals toppling a Waymo or lighting up fireworks does not in fact strip thousands of peaceful protesters of their First Amendment rights. I think it was so important to put this on the record, especially as this case rockets up to the higher courts, because this will not just be a fight over the law, but also a fight over the truth. And the truth is that these protests are not illegal, but constitutionally protected. We are lucky the case got assigned to a judge who was willing to say that.

For the scholars and dorks among us, can you lay out the statutory argument that California made here, as well as the constitutional argument? There is a lot happening here, and earlier this week, we weren’t actually sure if this lawsuit was going to succeed on the merits even before Judge Breyer.

I think a lot of people had that first impression, because, in some circumstances, the president can federalize and mobilize the National Guard even over a state’s objection. That’s what President Eisenhower did to protect the Little Rock Nine; everyone agrees he has that power. But the question here is whether Trump has invoked and exercised this power lawfully. The answer, as Judge Breyer writes, quite plausibly, seems to be no.f

Here’s why: When presidents want to mobilize the National Guard to rein in a state’s own lawlessness, they have historically drawn upon the Insurrection Act. It’s a long-standing statute that lets the president send in the troops no matter what the governor says. And it allows him to suspend what’s known as the Posse Comitatus Act, which generally prohibits the use of military members, including the National Guard, to perform civilian law enforcement. It is a foundational principle of American democracy that we do not usually let our military participate in domestic law enforcement. So Trump could have tried to invoke the Insurrection Act, drawn on this exception to the Posse Comitatus Act, and said: We’re sending in the National Guard because California has devolved into a state of lawlessness, and we need troops on the ground to enforce order.

But Trump didn’t do that. Instead, he invoked this completely different statute that applies in a much more limited set of circumstances—as relevant here, in the case of “rebellion.” Trump claimed there is a rebellion, but Judge Breyer said that obviously no such rebellion exists. Just as importantly, as Breyer pointed out, this law says the president may only invoke its powers “through the governors of the states.” So this is not the statute that a president uses when a governor is defying lawful orders and needs to be overruled. Quite the opposite: It’s a statute the president can use to work with the governor cooperatively to engage the National Guard.

Trump, of course, didn’t do that. He called up California’s National Guard over Newsom’s very clear objection.

Exactly. And to get around this problem, the Department of Defense literally just wrote at the top of the orders: “THROUGH: THE GOVERNOR OF CALIFORNIA.” Then the Trump administration had the gall to go to a federal court and claim that, by writing those words on the page, it had complied with the statute and issued the order “through” the governor. And Judge Breyer said that will not suffice under the law. This is simply not the statute that the president thinks it is. And Breyer held that the order was procedurally invalid and must be set aside.

Talk about the constitutional holding, too, because this was surprising to a lot of us who thought it was maybe a bit of a stretch when California first made it.

California argued that Trump is violating the 10^th Amendment, which reserves certain constitutional powers to the states. I did think this was a little bit of a reach. But Judge Breyer wrote that, under the Constitution, states have primary control of the National Guard. And states get to deploy their Guard for purposes they view as urgent and proper, like putting out wildfires in California. The president is not always and inherently the commander in chief of the National Guard; that only happens when he lawfully mobilizes them—which, Breyer ruled, he has not done here. And so by federalizing the Guard illegally, Trump has taken away California’s constitutional prerogative to deploy its own Guard as it sees fit. Breyer wrote that Gov. Newsom may want to deploy the National Guard for other purposes, but he can’t because it’s busy right now following Trump’s illicit orders. And he wrote that those orders therefore violate the 10^th Amendment.

That conclusion breaks new ground. It really is unprecedented. But that’s only because we’ve never really been in a situation like this before, where a president has improperly federalized the National Guard over a governor’s legitimate objection, so courts have not had to face the question. I think this stands at least some chance of holding up on appeal.

Two quick points: First, this ruling does not go into the question of the Marines being on site, right? It’s limited to the National Guard. So we should be mindful that there are Marines trained to kill people in foreign wars who are still on the ground policing their neighbors in L.A. And that is a source of worry. Second, Judge Breyer’s decision was quickly stayed by the U.S. Court of Appeals for the 9^th Circuit, and will be heard by a three-judge panel next Tuesday. The panel includes two Trump appointees.

Yes, although it’s Judges Mark Bennett and Eric Miller, who are not MAGA or far-right. The third member of the panel is Judge Jennifer Sung, a Biden appointee. They stayed Breyer’s ruling—unanimously, as far as we can tell—though Judge Breyer had already stayed his own ruling until Friday at noon. I think any panel would’ve done this to ensure that the legal questions get a full hearing.

I think we all know, though, that if the 9^th Circuit affirms any aspect of Breyer’s decision in any way, shape, or form, the government will be banging down the Supreme Court’s door demanding full relief within minutes. And I really fear the Supreme Court will oblige. The conservative justices have shown so much deference to Trump as the head of the military, even though he does not have automatic constitutional authority to serve as commander in chief of the California National Guard. And we should never forget that the Supreme Court itself allowed Trump to amass all of this power in the executive branch, and push aside the other branches and the states until they are reduced to a vanishing point.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Mark Joseph Stern is a Slate senior writer.

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Portside

Judge Issues Sweeping Smackdown of National Guard Takeover

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