California’s challenge of the Trump administration’s military deployment in Los Angeles returned to a federal courtroom in San Francisco on Friday for a brief hearing after an appeals court handed President Donald Trump a key procedural win.
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.
Newsom said in his complaint that “violation of the Posse Comitatus Act is imminent, if not already underway” but Breyer last week postponed considering that allegation.
The hearing comes a day after the 9th Circuit appellate panel allowed the president to keep control of National Guard troops he deployed in response to protests over immigration raids.
The appellate decision halted a temporary restraining order from Breyer, who found Trump acted illegally when he activated the soldiers over opposition from California Gov. Gavin Newsom. Breyer also asked the lawyers on Friday to address whether he or the appellate court retains primary jurisdiction to grant an injunction under the Posse Comitatus Act.
California has sought a preliminary injunction returning control to Newsom of the troops in Los Angeles, where protests have calmed down in recent days.
Trump, a Republican, argued that the troops have been necessary to restore order. Newsom, a Democrat, said their presence on the streets of a U.S. city inflamed tensions, usurped local authority and wasted resources.
The demonstrations have appeared to be winding down, although dozens of protesters showed up Thursday at Dodger Stadium, where a group of federal agents with their faces covered, traveling in SUVs and cargo vans, had gathered at a parking lot. The Los Angeles Dodgers organization asked them to leave, and they did.
On Tuesday, Los Angeles Mayor Karen Bass lifted a curfew in downtown Los Angeles that was first imposed in response to vandalism and clashes with police after crowds gathered in opposition to agents taking migrants into detention.
Trump federalized members of the California National Guard under an authority known as Title 10.
Title 10 allows the president to call the National Guard into federal service when the country “is invaded,” when “there is a rebellion or danger of a rebellion against the authority of the Government,” or when the president is otherwise unable “to execute the laws of the United States.”
Breyer found that Trump had overstepped his legal authority, which he said allows presidents to control state National Guard troops only during times of “rebellion or danger of a rebellion.”
“The protests in Los Angeles fall far short of ‘rebellion,’” wrote Breyer, a Watergate prosecutor who was appointed by President Bill Clinton and is the brother of retired Supreme Court Justice Stephen Breyer.
The Trump administration argued that courts can’t second-guess the president’s decisions. The appellate panel ruled otherwise, saying presidents don’t have unfettered power to seize control of a state’s guard, but said that by citing violent acts by protesters in this case, the Trump administration had presented enough evidence to show it had a defensible rationale for federalizing the troops.
For now, the California National Guard will stay in federal hands as the lawsuit proceeds. It’s the first deployment by a president of a state National Guard without the governor’s permission since troops were sent to protect Civil Rights Movement marchers in 1965.
Trump celebrated the appellate ruling in a social media post, calling it a “BIG WIN” and hinting at more potential deployments. “All over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done,” Trump wrote.
Newsom, for his part, has also warned that California won’t be the last state to see troops in the streets if Trump gets his way. “The President is not a king and is not above the law. We will press forward with our challenge to President Trump’s authoritarian use of U.S. military soldiers against citizens,” Newsom said.
Meanwhile, Vice President JD Vance was traveling to Los Angeles on Friday to meet with U.S. Marines who also have been deployed to protect federal buildings, his office announced.
