[Originally posted at 8:58 pm, bumped up to note stay materials.]
From Judge Charles Breyer (N.D. Cal.) just now in Newsom v. Trump; I expect the:
On June 6, 2025, the federal government initiated immigration raids across the City of Los Angeles. Protests swiftly followed, and some individuals involved in those protests were unruly and even violent. State and local law enforcement responded. The following day, President Trump ordered that members of the California National Guard be federalized, and thereupon assumed control of those forces.
At this early stage of the proceedings, the Court must determine whether the President followed the congressionally mandated procedure for his actions. He did not. His actions were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith.
The judge’s order:
- Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles.
- Defendants are DIRECTED to return control of the California National Guard to Governor Newsom.
- The Court further STAYS this order until noon on June 13, 2025.
UPDATE 6/12/2025 9:08 pm: A notice of appeal to the Ninth Circuit has already been filed, though I also expect an emergency stay motion to come as well.
UPDATE 6/12/2025 10:04 pm: The emergency motion for a stay has been filed in the Ninth Circuit; the Introduction:
The district court has entered an unprecedented order enjoining the President
from deploying National Guardsmen to protect federal officers from ongoing violent
protests and attacks, and to protect federal property from further damage. That order
is an extraordinary intrusion on the President’s constitutional authority as
Commander in Chief to call forth the National Guard as necessary to protect federal
officials, as well as his statutory authority under 10 U.S.C. § 12406 to mobilize state
National Guards into federal service. This Court should immediately stay the order
pending appeal.The President is specifically authorized by statute to deploy the National Guard
when “there is a rebellion or danger of a rebellion against the authority of the
Government of the United States” or “the President is unable with the regular forces
to execute the laws of the United States.” 10 U.S.C. § 12406(2)-(3). Both prongs
apply here: the violent actions taken by large numbers of protestors, whom local lawenforcement officials have been unable effectively to control, constitute a rebellion
against federal authority, and have impeded the ability of Immigration Customs and
Enforcement (ICE) and other federal officials to enforce federal law. The President
accordingly mobilized the National Guard “to temporarily protect ICE and other
United States Government personnel who are performing Federal functions,
including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur
based on current threat assessments and planned operations.”The district court concluded that the statutory conditions were not satisfied.
But that sort of second-guessing of the Commander in Chief’s military judgments is a
gross violation of the separation of powers. Nearly 200 years ago, the Supreme Court
made clear that these judgment calls are for the President to make—not a Governor,
and certainly not a federal court. See Martin v. Mott, 25 U.S. 19 (12 Wheat.) 19 (1827).
In any case, even if reviewable, the President had more than ample grounds to
determine that the riots rose to the level of a “danger” of rebellion, and that state and
local law enforcement were “unable” to sufficiently protect federal personnel and
property.The district court also found that the President’s memorandum was not issued
“through” the Governor of California within the meaning of 10 U.S.C. § 12406, but
that too was mistaken. The President’s memorandum directed the Secretary of
Defense to effectuate the federalization of National Guard troops, and the Secretary
issued memoranda to the Adjutant General of the California National Guard, who
acts for the Governor for these purposes, to transfer authority over the Guard from
the state to the federal government. Nothing in the statute requires the Governor’s
consent to mobilization―a legal theory that would have empowered the Governor of
Arkansas to block President Eisenhower from deploying the National Guard to
desegregate Arkansas’ public school. In any event, any failure to issue an order “through” the Governor—who indisputably had contemporaneous notice of the
order, and no legal authority to block it—would not support this extraordinary
injunction entered by the district court.The district court’s order improperly impinges on the Commander in Chief’s
supervision of military operations, countermands a military directive to officers in the
field, and puts federal officers (and others) in harm’s way. The balancing of harms
thus weighs strongly in favor of interim relief pending appeal and/or mandamus, and
this Court should also grant an immediate administrative stay pending consideration
of this motion. Defendants-appellants respectfully request that this Court act on the
motion no later than 9:00 pm PST today, June 12, 2025, to permit the Solicitor
General to seek immediate relief in the Supreme Court, if necessary, before the
expiration of the temporary stay issued by the district court at noon tomorrow, June
13.
