President Donald Trump unlawfully federalized thousands of members of California’s National Guard and must return control of the troops to the state, a federal judge ruled Thursday.
The ruling from senior US District Judge Charles Breyer is a significant win for Democratic Gov. Gavin Newsom, who sued Trump and Defense Secretary Pete Hegseth earlier this week after the president called the troops into federal service in the wake of protests in the Los Angeles area over Trump’s hardline immigration policies.
“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,” the judge wrote in his 36-page ruling.
Breyer is pausing his temporary restraining order until noon PT Friday. The Justice Department appealed the ruling minutes to the 9th US Circuit Court of Appeals after it was issued and indicated it may go to the US Supreme Court overnight as well.
Breyer, of the federal district court in San Francisco, said Trump had not satisfied any of the requirements that must be met in order to call up members of a state’s National Guard and that the president had not complied with a procedural aspect of federal law that requires presidents to issue an order “through the governor” when they want to federalize state troops.
“Regardless of whether Defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California’s National Guard, they did not issue their orders through him, and thus failed to comply with” federal law, he wrote.
Judge: Protests aren’t an insurrection
In federalizing the guardsmen, Trump pointed to a provision of federal law that says he can call up a state’s troops to suppress a “rebellion.” But Breyer said in his ruling that “the protests in Los Angeles fall far short of ‘rebellion.’”
“Violence is necessary for a rebellion, but it is not sufficient,” Breyer wrote. “Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are ‘armed’ in a 1903 sense – the Court is aware of no evidence in the record of actual firearms – there is little evidence of whether the violent protesters’ actions were ‘open or avowed.’”
The judge added: “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.”
And he was extremely critical of arguments pushed by DOJ that the protests in and around Los Angeles against Trump’s immigration policies constituted a rebellion.
“(T)he 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,” he wrote.
“In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone,” Breyer said. “The idea that protesters can so quickly cross the line between protected conduct and ‘rebellion against the authority of the Government of the United States’ is untenable and dangerous.”
The judge also said Trump had violated California’s rights under the 10th Amendment, writing that “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.”
“The federalization of 4,000 members of California’s National Guard necessarily prevents Governor Newsom, as the commander-in-chief of his state’s National Guard, from deploying them as needed,” Breyer wrote.
LA faces more harm with ‘militarization’
Breyer also suggested that having too much firepower on the ground may be making things worse.
“Federal agents and property may actually well be served by de-militarization and a concurring de-escalation of the situation,” the judge wrote.
“Regardless, 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,” he added.
Attorneys from DOJ had argued during a hearing earlier Thursday that Trump’s actions were lawful, pushing back on claims by the state that the president had violated federal law because he didn’t involve Newsom in the process of federalizing the troops.
Ruling doesn’t address use of Marines
Importantly, Breyer on Thursday did temporarily bar Trump from using Marines for law enforcement activities in California, as the state had requested. He noted that there was dispute between each side over whether both the federalized guardsmen and several hundred Marines deployed to LA would be engaged in such activities.
“The Court does not at this point reach any conclusion on this issue,” he wrote.
Breyer set a hearing for next Friday to hear arguments over whether his temporary order should not be converted into an indefinite ruling in the state’s favor.
This story has been updated with additional developments.
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