The initial ruling followed an hour-long hearing during which Breyer pressed both sides, and focused mostly around whether Trump went through the proper process for calling up the National Guard. He forcefully pushed back at the federal government’s contention that the courts had no place to weigh in on the issue, noting that the U.S. was “founded in response to a monarch.”
“The president is, of course, limited to his authority, and that’s the difference between a constitutional government and King George,” he said.
“It’s not that a leader can simply say something and then it becomes it. It’s a question of a leader — a president or a governor — following the law as set forth in both the Constitution and statutes. That’s what a president, a governor, or any leader must act under. Otherwise they become something other than a constitutional officer.”
At issue is whether the president had the power to overrule Newsom and activate 2,000 National Guard troops this week — troops who are normally under the control of state governors. Such a move by a U.S. president hasn’t occurred since the Civil Rights Movement in the 1960s.
California also objected in the suit to Trump and Defense Secretary Pete Hegseth’s decision to deploy 700 U.S. Marines to the Southern California city, though in that case, the state acknowledges that the president has sole authority over the troops.
The state’s attorneys asked the judge to order the National Guard troops back to their regular assignments, and for both the Marines and National Guard troops to be prohibited from patrolling streets or otherwise aiding in any law enforcement action other than protecting federal property and personnel. Specifically, the state wanted Breyer to bar the armed troops from directly participating in the “enforcement of civil laws,” something California contends they have been doing this week.
California filed suit on Monday, then asked for an immediate restraining order on Tuesday. Breyer instead asked the Trump administration to respond by Wednesday and scheduled the hearing for Thursday.
In court Thursday, California Deputy Attorney General Nicholas Green contended that the “version of executive power to police civilian communities that the government is advancing is breathtaking in scope.”
“They are saying, Your Honor, that the president by fiat can federalize the National Guard and deploy it in the streets of a civilian city whenever he perceives that there is disobedience to an order,” Green said. “That is an expansive, dangerous conception of federal executive power.”
Trump invoked a rarely used legal provision on Saturday that allows a president to deploy federal service members if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.” In court filings, the government argued the state is asking the court to “stop the President of the United States from exercising his lawful statutory and constitutional power to ensure that federal personnel and facilities are protected.”
In its response, California accused the president of advancing “a breathtaking vision of unlimited, unreviewable executive power.”
While the federal government has argued the troops are solely there to protect immigration agents as they pursue deportations, the commander overseeing U.S. military operations in Los Angeles said this week that the troops can detain people if federal personnel are assaulted — but cannot arrest them.
Breyer focused much of his questioning Thursday on whether Trump had followed proper legal procedures. He honed in on language in the statute that says “orders for these purposes shall be issued through governors of the states.”
Breyer said Trump’s administration didn’t tell Newsom directly, but instead Hegseth told the California National Guard’s adjutant general.
“I’m trying to figure out how something is through somebody if in fact you didn’t give it to him,” he said.
Assistant Attorney General Brett Shumate argued that the proper process was followed because the adjutant general “issues orders in the name of the governor.”
But if that’s the case, Breyer mused, why would Congress even mention the governor in the statute?
“Why not just simply say to the commanding officer, the command officer of the guard should be notified. I mean, isn’t there a contemplation at least that there may be a discussion between the commander in chief of the force and the prospective commander in chief of the force as to the advisability of that force?” Breyer said, noting that both Trump and Newsom were duly elected.
Breyer rejected California’s request to limit the actions of the U.S. Marines. The state wanted Breyer to prohibit the Marines from conducting law enforcement of civilians — but at the hearing, the judge noted that he has no evidence that is happening.
Green responded that the governor’s office has information that the Marines are planning to relieve the National Guard on the ground in L.A. “in the next 24 hours.”
But Breyer said it’s not his job as a judge to issue orders based on something that might happen.
“I sort of don’t think that’s my business,” he said.“It seems somewhat speculative, and it seems certainly a view of the future as distinct from what is presently being done today on this record.”
KQED’s Guy Marzorati contributed to this report.
