The Restraining Order Against Federalizing the California National Guard Highlights Trump’s Lawlessness
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 12406, which 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
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