ON TUESDAY, JUDGE CHARLES BREYER of the U.S. District Court for the Northern District of California issued his second injunction against Donald Trump for having unleashed the National Guard and the U.S. Marines on Los Angeles, “ostensibly to quell a rebellion and ensure that federal immigration law was enforced” in June. About three hundred National Guard members are still there. The case is headed for an appeal that could land in the U.S. Supreme Court, where it could prove to be the most consequential ruling since Trump v. United States, the 2024 decision that manufactured criminal pre-immunity for Trump.
The first time Judge Breyer did this, his ruling was slapped down by the U.S. Court of Appeals for the Ninth Circuit, which held, rather unpredictably, that President Trump can put federal troops in the streets to work alongside local law enforcement so long as he has a “colorable basis” to do so and acts on the “good faith” belief that his ability to execute federal law has been “significantly impeded.” These standards are undefined, subjective, and virtually impossible to probe under the Trump immunity decision, which held that a president’s state of mind is off-limits for purposes of criminal investigations involving official acts.
It’s easy to see how the majority could justify a win for Trump here, too.
Some background: The Framers of the Constitution, after having just a few years earlier fought a revolution to throw off the yoke of a bullying king, worried that a standing army could be used against civilians. But they also generally agreed that the federal government needed to have some coercive emergency power. The question they debated was who would get the power to invoke domestic use of military force. They ultimately settled on divvying it up.
The Constitution gives Congress (not presidents) the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” as well as the more familiar powers of declaring war, raising and supporting armies, maintaining a Navy, and making laws governing the military. And it gives the president the authority, as commander-in-chief, to lead and direct those forces if Congress calls them forth.
In 1792, 1795, and 1807, Congress passed a series of laws delegating to the president the power to call forth militias and use military forces to put down armed insurrections and rebellions. In 1927, the Supreme Court upheld the constitutionality of that delegation in Martin v. Mott.
The Insurrection Act in force today is an amalgamation of those statutes. The modern version allows presidents to deploy troops in three circumstances: (1) if a state’s legislature or governor asks for them; (2) to “enforce the laws” of the United States or “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law otherwise; and (3) to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “hinders the execution of the laws” in a way that deprives people of their constitutional rights or if the state “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
Although this language is extremely broad, no president before Trump has dared to stretch it to the point of abuse. President Dwight D. Eisenhower famously relied on the Insurrection Act to deploy troops to help children safety attend Arkansas public schools after that state’s governor called in its militia to thwart implementation of Brown v. Board of Education. Presidents have invoked the Insurrection Act a handful of times to suppress riots, most recently when George H.W. Bush, at the request of California Gov. Pete Wilson, sent the National Guard to Los Angeles during the 1992 riots that followed the Rodney King verdict.
Those 1992 riots were far bigger and much more deadly and damaging than this year’s protests in Los Angeles, which followed ICE detentions and arrests of dozens of people on June 6 in and around the city. Yet Trump’s excuse for sending Marines and calling in the California National Guard over Gov. Gavin Newsom’s objection was to tamp down those public protests. As Judge Breyer recounts it, “some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.” In fact, on June 7, the Los Angeles Police Department “was ‘fairly in control’ of the protests downtown.”
Trump took action anyway, issuing a memorandum that same day to Defense Secretary Pete Hegseth, Attorney General Pam Bondi, and Homeland Security Secretary Kristi Noem citing a statute adjacent to the Insurrection Act as grounds for calling in the National Guard “to temporarily protect ICE and other United State Government personnel . . . and to protect federal property.” (For reasons that are unclear, he didn’t cite the Insurrection Act itself.) Judge Breyer, in his first injunction, concluded that possible threats to federal personnel and federal property do not an insurrection or a rebellion make. But as mentioned, the Ninth Circuit greenlighted Trump’s use of the Insurrection Act-adjacent law for his L.A. incursion.
The latest round of litigation involved the Posse Comitatus Act. That law was enacted in 1878 to address concerns that white supremacists would return to power and use the military to undermine Reconstruction. It imposes fines or imprisonment on “whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as posse comitatus or otherwise to execute the laws.” In other words, the military cannot be invoked against civilians for local law enforcement unless a statutory exception to the law applies. (The term “posse comitatus” refers to people mobilized by a sheriff to constrain lawlessness.)
In his latest ruling, Judge Breyer outright declared that Trump “violated the Posse Comitatus Act.” The Marine and National Guard troops sent to California, which together were called “Task Force 51,” were instructed during training that certain law enforcement functions are prohibited by the law. Those included security patrols, traffic control, crowd control, and riot control. Hegseth nonetheless issued a memo directing them to do what’s “necessary to ensure the execution of Federal functions and the safety of Federal personnel.”
Breyer concluded:
The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles.
At trial, the government took the position that there did not even need to be actual threats—just the potential for unexpected threats—to unleash federal troops on civilians. Breyer laid out the stakes if Trump’s approach, which was guided by the Ninth Circuit’s ruling, prevailed:
• The President, relying upon IRS data showing that a sizeable percentage of corporations and individuals are using tax shelters to avoid paying taxes, could claim that he is unable to execute the tax laws.
• The President, relying upon EPA studies showing that pollution in a river cannot definitively be traced back to a specific manufacturing plant, could claim that he is unable to execute the Clean Water Act.
• The President, relying upon health data showing the number of individuals who present to hospitals with narcotic-related symptoms, could claim that he is unable to execute the federal drug laws.
• The President, relying upon anecdotes from state election officials that voting machines are glitching, or that fraud exists, could claim that he is unable to execute the election laws.
So where does this leave things as Trump threatens to invade other major cities across the country on his anti-crime crusade?
Thanks to another one of the Supreme Court’s recent pro-Trump decisions, which held that so-called “universal injunctions” operating outside a lower court’s territorial jurisdiction are unlawful, Breyer’s ruling will not stop Trump from targeting Chicago and Baltimore next. If the Supreme Court does get to the case, which is likely, it has plenty of leeway to stretch the majority’s approach to presidential power laid out in Trump v. U.S.—i.e., that it’s virtually unlimited—to back him this round, as well. And Trump knows it.
Of the possible deployment of the National Guard in Chicago, Trump said: “I have the right to do anything I want to do. I’m the president of the United States. If I think our country is in danger, and it is in danger in these cities, I can do it.” Tragically, with this supplicant Congress and enabling Supreme Court majority in tow, he might be right.
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