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JUDGE ISSUES SWEEPING SMACKDOWN OF NATIONAL GUARD TAKEOVER  
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Dahlia Lithwick and Mark Joseph Stern
June 13, 2025
Slate
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_ Trump claimed there is a rebellion, but Judge Breyer said that
obviously no such rebellion exists. Breyer held that a handful of
individuals toppling a Waymo does not in fact strip thousands of
peaceful protesters of their First Amendment rights. _

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On Thursday night, U.S. District Judge Charles Breyer ruled that
Donald Trump unlawfully federalized the California National Guard in
order to quell mass protests against his administration’s
immigration raids in Los Angeles. Breyer, the brother of former
Justice Stephen Breyer, issued a temporary restraining order
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to demobilize the National Guard and return control over the force to
California Gov. Gavin Newsom. His decision was promptly paused
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an appeals court, which will review it at an emergency hearing on
Tuesday.

Dahlia Lithwick and Mark Joseph Stern discussed Breyer’s unusually
courageous move, as well as the looming prospect of Supreme Court
intervention, on this week’s episode of Amicus
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below, has been edited and condensed for clarity.

DAHLIA LITHWICK: I THINK JUDGE BREYER TOOK TO HEART HIS RESPONSIBILITY
TO TELL THE TRUTH. HE WAS CRYSTAL CLEAR NOT ONLY ABOUT THE LAW, BUT
ALSO ABOUT WHAT IS ACTUALLY HAPPENING ON THE GROUND IN CALIFORNIA, AND
ABOUT NOT BELIEVING SOMETHING JUST BECAUSE THE GOVERNMENT SAID IT. 

MARK JOSEPH STERN: You can see that in the many, many pages of his
written opinion that are simply a factual recitation of what is truly
happening in L.A., as contrasted with what the government claims is
happening. So, for instance, one of the administration’s central
arguments is that there is a “rebellion” taking place on the
ground against the government, such that Trump has the right to
federalize California’s National Guard to enforce “order,” even
over the objection of Gov. Newsom. Judge Breyer essentially
said: _Wait a minute. Is there a rebellion, or is this in fact a
largely peaceful protest protected by the First Amendment? _And he
concluded that there was no rebellion at all—just citizens of this
country peacefully assembling to express their opposition to the
government’s immigration raids, which is clearly protected by the
First Amendment.

The government is attempting to round that up to a “rebellion” by
highlighting a few isolated instances of violence and then using them
to tarnish the entire assembly. But Breyer held that a handful of
individuals toppling a Waymo
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up fireworks
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not in fact strip thousands of peaceful protesters of their First
Amendment rights. I think it was so important to put this on the
record, especially as this case rockets up to the higher courts,
because this will not just be a fight over the law, but also a fight
over the truth. And the truth is that these protests are not illegal,
but constitutionally protected. We are lucky the case got assigned to
a judge who was willing to say that.

FOR THE SCHOLARS AND DORKS AMONG US, CAN YOU LAY OUT THE STATUTORY
ARGUMENT THAT CALIFORNIA MADE HERE, AS WELL AS THE CONSTITUTIONAL
ARGUMENT? THERE IS A LOT HAPPENING HERE, AND EARLIER THIS WEEK, WE
WEREN’T ACTUALLY SURE IF THIS LAWSUIT WAS GOING TO SUCCEED ON THE
MERITS EVEN BEFORE JUDGE BREYER.

I think a lot of people had that first impression, because, in some
circumstances, the president can federalize and mobilize the National
Guard even over a state’s objection. That’s what President
Eisenhower did to protect the Little Rock Nine; everyone agrees he has
that power. But the question here is whether Trump has invoked and
exercised this power _lawfully_. The answer, as Judge Breyer writes,
quite plausibly, seems to be no.f

Here’s why: When presidents want to mobilize the National Guard to
rein in a state’s own lawlessness, they have historically drawn upon
the Insurrection Act. It’s a long-standing statute that lets the
president send in the troops no matter what the governor says. And it
allows him to suspend what’s known as the Posse Comitatus Act, which
generally prohibits the use of military members, including the
National Guard, to perform civilian law enforcement. It is a
foundational principle of American democracy that we do not usually
let our military participate in domestic law enforcement. So Trump
could have tried to invoke the Insurrection Act, drawn on this
exception to the Posse Comitatus Act, and said: _We’re sending in
the National Guard because California has devolved into a state of
lawlessness, and we need troops on the ground to enforce order. _

But Trump didn’t do that
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Instead, he invoked this completely different statute
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much more limited set of circumstances—as relevant here, in the case
of “rebellion.” Trump claimed there is a rebellion, but Judge
Breyer said that obviously no such rebellion exists. Just as
importantly, as Breyer pointed out, this law says the president may
only invoke its powers “through the governors of the states.” So
this is not the statute that a president uses when a governor is
defying lawful orders and needs to be overruled. Quite the opposite:
It’s a statute the president can use to work _with _the governor
cooperatively to engage the National Guard.

TRUMP, OF COURSE, DIDN’T DO THAT. HE CALLED UP CALIFORNIA’S
NATIONAL GUARD OVER NEWSOM’S VERY CLEAR OBJECTION. 

Exactly. And to get around this problem, the Department of Defense
literally just wrote at the top of the orders: “THROUGH: THE
GOVERNOR OF CALIFORNIA.” Then the Trump administration had the gall
to go to a federal court and claim that, by writing those words on the
page, it had complied with the statute and issued the order
“through” the governor. And Judge Breyer said that will not
suffice under the law. This is simply not the statute that the
president thinks it is. And Breyer held that the order was
procedurally invalid and must be set aside.

TALK ABOUT THE CONSTITUTIONAL HOLDING, TOO, BECAUSE THIS WAS
SURPRISING TO A LOT OF US WHO THOUGHT IT WAS MAYBE A BIT OF A STRETCH
WHEN CALIFORNIA FIRST MADE IT.

California argued that Trump is violating the 10th Amendment, which
reserves certain constitutional powers to the states. I did think this
was a little bit of a reach. But Judge Breyer wrote that, under the
Constitution, states have primary control of the National Guard. And
states get to deploy their Guard for purposes _they _view as urgent
and proper, like putting out wildfires in California. The president is
not always and inherently the commander in chief of the National
Guard; that only happens when he lawfully mobilizes them—which,
Breyer ruled, he has not done here. And so by federalizing the Guard
illegally, Trump has taken away California’s constitutional
prerogative to deploy its own Guard as it sees fit. Breyer wrote that
Gov. Newsom may want to deploy the National Guard for other purposes,
but he can’t because it’s busy right now following Trump’s
illicit orders. And he wrote that those orders therefore violate the
10th Amendment.

That conclusion breaks new ground. It really is unprecedented. But
that’s only because we’ve never really been in a situation like
this before, where a president has improperly federalized the National
Guard over a governor’s legitimate objection, so courts have not had
to face the question. I think this stands at least some chance of
holding up on appeal.

TWO QUICK POINTS: FIRST, THIS RULING DOES NOT GO INTO THE QUESTION OF
THE MARINES BEING ON SITE, RIGHT? IT’S LIMITED TO THE NATIONAL
GUARD. SO WE SHOULD BE MINDFUL THAT THERE ARE MARINES TRAINED TO KILL
PEOPLE IN FOREIGN WARS WHO ARE STILL ON THE GROUND POLICING THEIR
NEIGHBORS IN L.A. AND THAT IS A SOURCE OF WORRY. SECOND, JUDGE
BREYER’S DECISION WAS QUICKLY STAYED BY THE U.S. COURT OF APPEALS
FOR THE 9TH CIRCUIT, AND WILL BE HEARD BY A THREE-JUDGE PANEL NEXT
TUESDAY. THE PANEL INCLUDES TWO TRUMP APPOINTEES. 

Yes, although it’s Judges Mark Bennett and Eric Miller, who are not
MAGA or far-right. The third member of the panel is Judge Jennifer
Sung, a Biden appointee. They stayed Breyer’s ruling—unanimously,
as far as we can tell—though Judge Breyer had already stayed his own
ruling until Friday at noon. I think any panel would’ve done this to
ensure that the legal questions get a full hearing.

I think we all know, though, that if the 9th Circuit affirms any
aspect of Breyer’s decision in any way, shape, or form, the
government will be banging down the Supreme Court’s door demanding
full relief within minutes. And I really fear the Supreme Court will
oblige. The conservative justices have shown so much deference to
Trump as the head of the military, even though he does _not_ have
automatic constitutional authority to serve as commander in chief of
the California National Guard. And we should never forget that the
Supreme Court itself allowed Trump to amass all of this power in the
executive branch, and push aside the other branches and the states
until they are reduced to a vanishing point.

DAHLIA LITHWICK writes about the courts and the law for Slate and
hosts the podcast Amicus [[link removed]].

MARK JOSEPH STERN is a Slate senior writer.

_Slate [[link removed]] is an online magazine of news, politics,
technology, and culture. It combines humor and insight in thoughtful
analyses of current events and political news. Choose the newsletters
you want [[link removed]] to get the Slatest._

* rule of law
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* federal courts
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* Donald Trump
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* National Guard
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