California Gov. Gavin Newsom argues that President Donald Trump’s unilateral deployment of that state’s National Guard was illegal and unconstitutional. On Thursday night, a federal judge in San Francisco agreed, issuing a temporary restraining order (TRO) that bars the Trump administration from “deploying members of the California National Guard in Los Angeles” and orders it to “return control of the California National Guard to Governor Newsom.”
That TRO is on hold because of a stay imposed by the U.S. Court of Appeals for the 9th Circuit. But U.S. District Judge Charles Breyer’s reasoning suggests that Trump attempted a legal shortcut without regard to statutory or constitutional constraints, which is part of a pattern for him.
“The Court must determine whether the President followed the congressionally mandated procedure for his actions,” Breyer wrote. “He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
In a memo issued last Saturday, Trump instructed Secretary of State Pete Hegseth to deploy 2,000 National Guard members (subsequently raised to 4,000) in response to protests against Immigration and Customs Enforcement (ICE) raids in Los Angeles. Trump invoked 10 USC 12406which authorizes the president to “call into Federal service members and units of the National Guard of any State” in three circumstances: 1) when the United States “is invaded or is in danger of invasion by a foreign nation,” 2) when “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” or 3) when “the President is unable with the regular forces to execute the laws of the United States.”
Trump seemed to have the second situation in mind. “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,” he wrote. In response to Newsom’s lawsuit, which was filed on Monday, the government’s lawyers clarified that Trump also was asserting the third condition—i.e., that enforcement of federal law was impossible “with the regular forces.” Breyer thinks neither condition has been met.
Since the statute does not define “rebellion,” Breyer said, the term must be interpreted “consistent with [its] ‘ordinary meaning at the time Congress enacted the statute.'” Both sides in the case cited the definition in the current edition of Black’s Law Dictionary. Helpfully for the government, that definition includes “open resistance or opposition to an authority or tradition,” which could be read to cover violent or disruptive protests. But the primary definition is “open, organized, and armed resistance to an established government or ruler,” especially “an organized attempt to change the government or leader of a country, [usually] through violence.”
Since the provision on which Trump is relying descends from the Militia Act of 1903, Breyer also looked at several definitions from around that time, including the one from the 1891 edition of Black’s Law Dictionary. “The first definition of ‘rebellion’ in each dictionary is political in nature, as opposed to the more open-ended concept of ‘rebellion’ that some dictionaries provide as a secondary definition,” he wrote. “And if there were any room for doubt, the language of [Section 12406] (requiring that the rebellion be ‘against the authority of the Government of the United States’) resolves the question in favor of the political definition of ‘rebellion.'”
Breyer added that “the dictionary definitions from the turn of the century share several key characteristics”: A rebellion must be “armed” as well as violent, it must be organized, and it must be “open and avowed.” Finally, “a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.”
As Breyer sees it, the protests in California plainly do not meet those criteria. Although the government referred repeatedly to “mobs” and “violent rioters,” he wrote, “there can be no debate that most protesters demonstrated peacefully.” At the same time, “it is also beyond debate that some individuals used the protests as an excuse for violence and destruction.”
On June 6, for example, “some bad actors” threw “concrete chunks, bottles of liquid, and other objects” at police officers. On June 7, “others threw rocks and other objects, including a Molotov cocktail,” and a “‘violent crowd’ boxed in officers, threw fireworks, rocks, and mangos, and trapped one officer in her car, surrounding it, shaking it, and throwing stones at it.” On June 8, some people “set off fireworks toward officers and threw objects at their vehicles.” On June 9, someone “fired paintballs,” and “a crowd injured five LAPD officers.”
Does this rise to the level of a “rebellion”? Breyer thinks not. “Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are ‘armed’ in a 1903 sense,” he says, “there is little evidence [that] the violent protesters’ actions were ‘open or avowed.’…There is no evidence of organized, as apart from sporadic or impromptu, violence. Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole; the evidence is overwhelming that protesters gathered to protest a single issue—the immigration raids.”
Although the government “pointed to several instances of violence,” it has not “identified a violent, armed, organized, open and avowed uprising against the government as a whole,” Breyer said. “The definition of rebellion is unmet.”
What about Section 12406’s third condition? Is it true that Trump was “unable with the regular forces to execute the laws of the United States”?
“Defendants argue that they satisfy this condition because the Los Angeles protests threatened the safety of federal law enforcement personnel and interfered with the sites where ICE agents were enforcing alien removal laws,” Breyer noted. “Defendants concede that ICE succeeded in arresting 44 people on June 6, but insist that ‘that limited success came with the risk of danger,’ and that, had the protests not interfered with their operations, ICE ‘would have been able to carry out additional execution-of-the-laws activity.'”
Breyer viewed that claim as “mere conjecture,” noting that the defendants “provide no support” for it. But even if they are correct, he said, “the statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs. The statute requires that the President be ‘unable’ to execute the laws of the United States. That did not happen here.”
Breyer also concluded that the Trump administration had failed to follow Section 12406’s procedural requirements. In particular, the law says “orders for these purposes shall be issued through the governors of the States.” Newsom complained that federal officials did not give him “an opportunity to consult with them or consent to the federalization of California’s National Guard,” Breyer noted. But whether or not that is true, he said, “they did not issue their orders through him and thus failed to comply with [Section] 12406.”
California’s lawsuit also argued that Trump’s deployment “infringes on Governor Newsom’s role as Commander-in-Chief of the California National Guard and violates the State’s sovereign right to control and have available its National Guard in the absence of a lawful invocation of federal power.” Breyer sees merit in that claim.
“It is well-established that the police power is one of the quintessential powers reserved to the states by the Tenth Amendment,” Breyer wrote. “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….The unlawful federalization of [National Guard] members has interfered with the state’s legitimate police power, and thus it violates the Tenth Amendment.”
