The Trump administration must return control of federalized California National Guard troops deployed to the Los Angeles protests back to the state, a federal judge in California ruled on Thursday, setting up a potential standoff over the fate of the roughly 4,000 mobilized guardsmen.
“[President Trump]’s actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” Judge Charles R. Breyer wrote in a stunning Thursday evening ruling. “He must therefore return control of the California National Guard to the Governor of the State of California forthwith.”
The administration and the state squared off earlier that day in California’s lawsuit challenging the president’s decision from last week to federalize the National Guard troops despite opposition from state and local officials.
During the hearing, an attorney for California warned that the Trump administration, by taking control of the Guard, was enacting a “dangerous expansion of executive power.”
“They are saying the president can by fiat deploy the National Guard,” attorney Nicholas Green reportedly said.
During oral arguments, California also expressed alarm at the ongoing presence of the federalized troops alongside immigration officers around Los Angeles, suggesting such tactics were an ongoing violation of the Posse Comitatus Act, which generally bars military troops from being used for domestic law enforcement unless the president invokes the Insurrection Act, which he so far hasn’t.
“If that’s not a violation of the Posse Comitatus Act, nothing is,” an official for the governor’s office said, pointing to June 10 photos of troops standing guard as ICE agents made arrests.
California argued the deployment, which has swelled to encompass some 4,000 National Guard troops and 700 Marines, violates federal law on the topic, which outlines presidents giving orders to state National Guard branches “through the governors.”
The Trump administration, for its part, argued the president rightfully used his powers as commander-in-chief of the armed forces, and that the National Guard order would’ve been lawful even without invoking the federal law in question, 10 U.S. Code § 12406.
Justice Department attorney Brett Shumate reportedly told the court on Thursday that pausing or revoking the White House decision on the National Guard was an “extraordinary” and inappropriate step for a federal court.
“It would reverse the president’s military judgment,” Shumate said. “It would put federal officers and property at risk.”
The administration also argued it communicated its orders to a state official responsible for the Guard, despite ordering the deployment without Newsom’s consent.
Judge Breyer often appeared skeptical towards the Trump administration’s position, pushing back on its assertions that courts don’t have the authority to weigh in on the legal and factual basis for sending in the troops.
Breyer reportedly described such thinking as tantamount to giving the president unchecked power, where, “If he says it, it’s so.”
At various points, the judge waved a pocket Constitution at the participants in the case, and suggested political leaders making decisions without checks and balances were more like the kings from whom the 13 colonies revolted to form the United States.
“That’s the difference between a Constitutional government and King George,” Breyer said. “It’s not that a leader can simply say something and it becomes it.”
