Judge Breyer got it exactly right

Rarely have I read a judicial opinion where I was nodding in agreement at every word. But that was my reaction to Judge Charles Breyer's brilliant opinion in Newsom v. Trump, which declared President Trump's nationalization of the California National Guard to be impermissible under federal law. Now it is for the 9th Circuit and ultimately the Supreme Court to follow his careful reasoning.

The context for Judge Breyer's opinion is President Trump's nationalizing 4,000 members of the California National Guard and deploying them in Los Angeles to quell anti-ICE protests. President Trump then deployed 700 Marines there. He has said to expect this in other cities. Secretary of Defense Pete Hegseth said that we are "entering another phase" where troops will be use "to secure the homeland." 

It must be emphasized how unprecedented it is in the United States for a president to use the military for domestic law enforcement. It last occurred in 1992 when California Governor Pete Wilson asked President George W. Bush to call out the National Guard to quell the riots in Los Angeles after the verdict acquitting police officers for beating Rodney King. It had not occurred without a governor's request since 1965, when President Lyndon Johnson used the military to protect civil rights protestors in Selma, Alabama.

Judge Breyer's opinion rightly recognized that there are two distinct issues: Did the President act lawfully in federalizing the California National Guard? Is their use, and the deployment of marines, a violation of the Posse Comitatus Act, which prevents the use of the military for domestic law enforcement? Only the former issue was before Judge Breyer.

The authority of a president to federalize a state's national guard is found in 10 U.S.C. § 12406, which was adopted as part of the Militia Act of 1903. That provision authorizes the president to "call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary," but only if (1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (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 Trump administration claimed that it, and it alone, could decide whether the requirements of this law are met. It relied on language from the Supreme Court's decision in 1827, in Martin v. Mott, the Supreme Court said that "the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and ... his decision is conclusive upon all other persons."

But in a crucial part of the opinion, Judge Breyer explained that this does not preclude the federal courts from deciding whether the statutory requirements for federalizing the National Guard are met. He wrote: "Accordingly, the Court concludes that § 12406 does not preclude judicial review of whether a rebellion has occurred or is in danger of occurring, or whether the President is unable to execute federal law."

This, of course, follows directly from what the Supreme Court declared long ago in Marbury v. Madison (1803), that it is "emphatically the province and duty of the judicial department to say what the law is." The alternative is truly chilling: The President would have unchecked power to nationalize any state's National Guard and to deploy them for domestic law enforcement. It would render the conditions in the statute, and ultimately the Posse Comitatus Act, meaningless.

The Trump administration invoked two provisions of § 12406 to justify federalizing the California National Guard. One is if there "is a rebellion or danger of a rebellion against the authority of the Government of the United States." Judge Breyer carefully reviewed the definitions of rebellion and concluded: "First, a rebellion must not only be violent but ... '[o]pen or determined defiance of or resistance to any authority, controlling power, or convention; an instance of this.' Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, 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."

Judge Breyer then rightly concluded that "[t]he protests in Los Angeles fall far short of 'rebellion.'" He explained why these requirements are not met, but then quite importantly he said, "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." The law is clear that protests against the government are protected by the very core of the First Amendment, and they do not lose that protection even if some protestors violate the law.

The Trump administration also invoked the third part of § 12406, where "the President is unable with the regular forces to execute the laws of the United States." But as Judge Breyer pointed out, there was no evidence to support that the police were incapable of preserving order and dealing with the protests.

Judge Breyer also separately pointed to a procedural problem with how the Trump administration had involved § 12406: The orders must "be issued 'through the governor of the respective State ... from which State ... such troops may be called.'" The government claimed that this was met because written at the top of the orders were the words, "Through: The Governor of California." But Judge Breyer explained that it "strains credibility" to say that a document that was never sent to Gov. Gavin Newsom was "through the governor of California."

Judge Breyer did not see it necessary to decide the Tenth Amendment issue, but it, too, provides strong support for the state's challenge to President Trump's federalization of the National Guard. Beginning with New York v. United States, in 1992, the Supreme Court has held that the federal government cannot commandeer the states and force them to administer federal mandates or enact laws. The Court reaffirmed this in Printz v. United States (1997) and Murphy v. NCAA (2018). No president has attempted to nationalize a state's guard since these decisions. President Trump's use of § 12406 is literally commandeering the state guard and thus violates the Tenth Amendment.

A preliminary injunction requires irreparable injury. Judge Breyer powerfully explained why it is present here:  "Plaintiffs and the citizens of Los Angeles face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions. ... Defendants' actions also threaten to chill legitimate First Amendment expression." 

Judge Breyer thus rightly enjoined President Trump from deploying members of the California National Guard in Los Angeles and required him to return control of the California National Guard to Governor Newsom. It is vitally important that the United States Court of Appeals for the 9th Circuit and the Supreme Court affirm Judge Breyer.

As with so much that has happened since Jan. 20, President Trump has shown no concern for long-standing norms limiting presidential power. Quite the contrary, he is doing everything he can to aggrandize the power of the president and to exercise authoritarian control. Using the military within the United States is inconsistent with fundamental norms that have been followed with rare exceptions and never in situations like this.

President Trump and Secretary Hegseth say that what is being done in Los Angeles is a prelude to what they plan across the country. This must be stopped now before it transforms the function of the military and the nature of our country. Judge Breyer's opinion did just that, and his ruling should be emphatically affirmed.