Thread by @LizaGoitein

A federal judge has issued a temporary restraining order (TRO) requiring Trump to return control of the National Guard to CA Governor Newsom. The order is accompanied by a powerful opinion that affirms the rule of law, separation of powers, and the First Amendment. 1/23

U.S. District Judge Charles Breyer found that CA is likely to succeed on the merits of some of its claims, which is the first and often most important criterion for issuing a TRO. To start, the law Trump relied on to federalize the Guard didn’t give him that authority. 2/23

That law, 10 USC 12406, applies only if there’s an invasion by a foreign nation or a “rebellion or danger of a rebellion against the authority of the Government of the United States,” or if the President is unable to execute federal law without using the military. 3/23

The administration argued that no judge can review whether these requirements are satisfied; the president is his own judge. The court flatly rejected this, noting that Congress could have expressly left this determination to the president’s discretion, but it didn’t. 4/23

Moreover, Judge Breyer observed, courts routinely interpret the terms of statutes. And while courts often defer to presidents’ factual determinations in matters of foreign policy or national security, domestic civil unrest doesn’t fall into those categories. 5/23

The court then examined the term “rebellion.” Relying on contemporaneous dictionaries, it found that a rebellion is a “violent, armed, organized, open and avowed uprising against the government as a whole.” Protests involving isolated instances of violence don’t qualify. 6/23

Here, the court sounded an eloquent constitutional alarm. It cited a long list of court decisions affirming the foundational First Amendment right to protest—and rejecting the notion that the government can abridge that right based on isolated incidents of violent conduct. 7/23

The court followed up with this warning: “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.” 8/23

The court then turned to the administration’s claim that the protests interfered with ICE’s ability to conduct raids. As the court observed, the law requires more than the existence of some impediment: the president must be unable to execute the law without military forces. 9/23

Here, ICE arrested dozens of people as the protests were happening. The court contrasted this situation with Nixon’s use of the same law in 1970, when a postal strike entirely paralyzed the mail service and the Guard was federalized to ensure that mail could be delivered. 10/23

Next, the court addressed CA’s argument that Trump violated the second part of 10 USC 12406, which requires federalization orders to be issued “through the governors of the states.” With a straight face, the government lawyer argued that this criterion had been met… 11/23

…because the orders had the words “THROUGH: THE GOVERNOR OF CALIFORNIA” written on them. Even though the administration didn’t send the orders to the governor at all. The court made short work of this argument and found that the requirement had been violated. 12/23

Because Trump had no lawful basis to federalize the National Guard, the court found that removing the Guard from the governor’s control violated the Tenth Amendment, which reserves to the states and the people all powers not delegated to the federal government. 13/23

The court did accept one of the administration’s arguments. Unlike the National Guard, the Marines did not need to be federalized under 10 USC 12406 or any other law; they are always a federal entity. California raised a different challenge to their deployment… 14/23

…arguing that they had violated, or were about to violate, the Posse Comitatus Act. That’s the law that bars federal forces from conducting core law enforcement activities, such as arrests, searches, or seizures, without express statutory or constitutional authorization. 15/23

The court found that the evidence currently in the record didn’t support a finding that the troops had conducted such activities. It therefore declined to rule on that issue at this time, noting that “the record will be more complete” at a later stage in the litigation. 16/23

Finally, the court turned to the balance of harms and the public interest—the other criteria for issuing a TRO. It found that CA was harmed by not being able to make full use of its National Guard to combat ongoing wildfires and intercept fentanyl coming across the border. 17/23

It also found that the unlawful deployment of federalized Guard forces had increased tensions in Los Angeles and had actually made matters worse, noting a sharp uptick in arrests by local law enforcement after the deployment. 18/23

The court noted that this effect was predictable. It stated pointedly that “the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention.” 19/23

As for the administration, the court found that the government has an interest in protecting federal agents and property, but that “they have no legitimate interest in doing so beyond the bounds of their authority.” 20/23

Based on these findings, Judge Breyer issued an order requiring Trump to return the National Guard to Governor Newsom’s control. He stayed his own ruling until noon on Friday June 13 to give the government time to file an emergency appeal (which it immediately did). 21/23

For now, the Marines are under no injunction and may remain in Los Angeles. If they begin to engage in detentions, searches, and similar conduct, however, the court will revisit the lawfulness of their deployment. 22/23

This is only the first chapter, and the Supreme Court will almost surely have the final word. But for now, Judge Breyer has joined a growing list of both Democratic and Republic appointees to the bench who are holding the line against this administration’s abuses of power. 23/23