The federal judge overseeing Gavin Newsom's lawsuit attempting to wrest control of the California Army National Guard from President Trump reacted to his repudiation by the Ninth Circuit Court of Appeals in the most progressive way possible; he ignored his loss and rebooted the case to contain an issue that Newsom did not initially argue. Judge Charles Breyer, a Clinton appointee, blithely shook off a three-judge panel of the Ninth Circuit, essentially laughing his opinion out of court, and ordered Newsom and the Trump administration to present briefings on Monday on whether he has jurisdiction to determine if the Posse Comitatus Act has been violated.
As a refresher, on June 7, President Trump called parts of the California Army National Guard into federal service; see Here We Go: Trump Deploys National Guard, As the 'Find Out' Phase Begins for California Anti-ICE Rioters. This was in response to statements by elected California politicians, including Gavin Newsom and Los Angeles Mayor Karen Bass, that seemed calculated to stoke the riots around immigration raids in the Los Angeles area. Violent rioters confronted ICE agents involved in immigration enforcement, and local police appeared to be unable or unwilling to provide protection. In addition, federal facilities were subjected to vandalism and overt attacks. President Trump wrote his letter to Secretary of Defense Pete Hegseth: "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."
President Trump federalized some California National Guard units under the authority granted him by 10 U.S. Code § 12406, which states:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
Newsom and his allies sued, claiming Trump had no authority to federalize California's National Guard. Judge Breyer agreed and issued a Temporary Restraining Order in favor of Newsom. The Justice Department immediately appealed to the Ninth Circuit, which quickly slapped down Breyer's rather exotic take on the law.
BACKGROUND:
Gavin Newsom Prepares to Sue Trump to Keep the LA Riots Going – RedState
Breaking: Federal Judge Orders Trump to Return California National Guard to State Control – RedState
Breaking: 9th Circuit Issues Stay Pending Appeal in CA National Guard Case, Handing Trump a Big Win
Ordinarily, that would have ended the TRO and paused the action as the case was heard in court and then again on appeal. But these times are anything but ordinary. Across the country, activist judges are taking on patently illegal power to stymie federal actions. Federal judges are reinstating contracts when the law says they can't. Judges are inventing rights in immigration cases in overtly unlawful ways. Rando judges out in Bumfuk, Iowa, are entering nationwide injunctions based on a single case. Rather than take the "L" and move on, Breyer took another pass at blocking Trump's authority.
U.S. District Judge Charles Breyer put off issuing any additional rulings and instead asked for briefings from both sides by noon Monday on whether the Posse Comitatus Act, which prohibits troops from conducting civilian law enforcement on U.S. soil, is being violated in Los Angeles.
A posse comitatus is a term for an elected executive or sheriff deputizing private citizens to protect property or restore order. The Posse Comitatus Act was passed in the immediate aftermath of the Reconstruction Era and was a response to the excesses of occupation forces in the former Confederacy. Last updated in 2021, the Act is pretty simple: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” In context, it refers to using the military for law enforcement purposes.
What makes Breyer's decision sort of gobsmacking is 1) that the authority Trump used to federalize the California National Guard is a law passed by Congress that clearly anticipates the military serving as law enforcement (the phrase "enforce those laws" should be a clue) and 2) at no time in the proceeding did Newsom allege that Guardsmen had been used for law enforcement. Quite the contrary, the Ninth Circuit opinion observes, "The district court declined to address Plaintiffs’ ultra vires claim based on the Posse Comitatus Act, see 18 U.S.C. § 1385, because Plaintiffs conceded that using federal forces to protect federal personnel and property would not violate the Posse Comitatus Act and because Plaintiffs presented no evidence that National Guard members were engaged in any other activities."
So Breyer is demanding a briefing on an issue that has not been alleged to have taken place, and, given the text of the relevant law, it is highly unlikely that it is even possible to do so because the law contemplates the military enforcing federal laws.
What's afoot?
My go-to on Trump legal battles, the Federalist's Professor Margot Cleveland, says it is a delay.
Breyer will find he can [and] will find violation of Posse Comitatus Act [and] enter new injunction. He'll try to keep 9th Cir. from overruling by making lots of "factual" findings re what Trump is doing w/ troops to find violation. He's ordering briefing merely to appear open-minded, just like he did with TRO--he didn't grant it but ordered briefing but at hearing clearly had decided Trump loses and 9th Cir. quickly overturned.
Whatever his motive, the root cause is lawlessness and hubris. When a circuit court judge finds himself moved to dispute a president's finding on an issue that is squarely within his Article 2 powers and substitute his personal judgment and policy preference, the rule of law has come to an end. Unless Chief Justice John Roberts steps in and pushes the federal judiciary back into its lane, the obvious outcome is not the president meekly going along, it will be Andrew Jackson on meth and steroids: The courts have made their decision, now let them enforce it.
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