“The fight doesn’t end here.” Gavin Newsom made that announcement on Thursday, soon after a federal appellate court ruled President Donald Trump retains control over the California National Guard. By Friday morning, the overturned district court judge repeated the mantra, but in subtler, more judicious terms designed to obscure his bias and his intent to halt the president’s use of the National Guard and Marines in Los Angeles. The apparent plan is now to find the president’s deployment violates the Posse Comitatus Act, which goes to show that judges bent on executing a coup by courts also have six ways to Sunday to rebel against the duly elected president.
After rioters attacked ICE agents and federal property in California, President Trump, on June 7, 2025, federalized the California National Guard. Once under federal command, Secretary of Defense Pete Hegseth ordered thousands of National Guard troops to deploy to Los Angeles. Secretary Hegseth later also deployed some 700 active-duty U.S. Marines from Camp Pendleton to Los Angeles.
Within days of the president’s federalizing of the California National Guard, Governor Newsom filed a multi-count complaint in a San Francisco federal court. Then, at 11:00 a.m., on June 10, 2025, the governor asked the court to immediately (by 1:00 p.m.) grant him an ex parte temporary restraining order, barring the deployment of troops in Los Angeles and directing the president to return control of the National Guard to the governor. Presiding Judge Charlies Breyer instead provided the Trump Administration twenty four hours to respond to the motion and set a hearing for June 12, 2025, at 1:30 p.m.
Judge Breyer opened the June 12, 2025 hearing by noting he had refused to grant the requested injunction on an ex parte basis, with the Clinton-appointee stressing the importance of hearing from both sides before ruling. However, Judge Breyer soon made clear his fist was firmly on Governor Newsom’s side of the scale, with the federal judge appropriating the language of the Left and declaring we have no king in America. It came as no surprise, then, to court listeners, that by day’s end, Judge Breyer had entered an injunction against President Trump, enjoining him “from deploying members of the California National Guard in Los Angeles,” and directing the Commander-in-Chief “to return control of the California National Guard to Governor Newsom.” The Court stayed his order until noon on Friday, June 13, 2025.
The Trump Administration immediately sought a stay of Judge Breyer’s injunction in the Ninth Circuit Court of Appeals — the federal circuit court that hears appeals from district courts in California, among other western states. Within hours, a three-judge panel of the federal appellate court entered an administrative stay of Judge Breyer’s order, keeping the president in charge of the National Guard. The Ninth Circuit then set an expedited briefing schedule and scheduled a hearing for Tuesday, June 17, 2025.
Last Tuesday, Trump-appointees, Judges Mark Bennette and Eric Miller, joined by their colleague, Biden-appointee Judge Jennifer Sung, heard the parties’ argument concerning the propriety of the injunction. Two days later, in a unanimous opinion, the Court held the Trump Administration “made the required strong showing that they are likely to succeed on the merits of their appeal,” and stayed the lower court’s injunction against the president. That stay left the California National Guard under federal control and deployed in Los Angeles, as directed by Secretary Hegseth.
In concluding that Trump was likely to succeed on the merits of his appeal, the Ninth Circuit focused on Newsom’s claim that the president lacked authority under 10 U.S.C. § 12406 to federalize the California National Guard. That federal statute authorizes the President to federalize the National Guard of a state whenever, among other things, “the President is unable with the regular forces to execute the laws of the United States . . . ”
While Judge Breyer concluded that Trump had failed to establish that he was unable with regular forces to execute the laws of the United States, the Ninth Circuit rejected the lower court’s reasoning in two respects. First, the three-judge panel concluded that courts owe great deference to the president’s conclusion that regular forces are unable to execute federal law. Thus, so long as the president’s decision “reflects a colorable assessment of the facts and law within a ‘range of honest judgment,’” courts cannot substitute their judgment for the president’s. Yet, that was precisely what Judge Breyer did when he personally assessed whether the factual predicate proffered by the president left Trump “unable to execute federal law.”
The Ninth Circuit highlighted a second fundamental error in Judge Breyer’s decision, namely the lower court’s conclusion that Trump’s federalization of the California National Guard was not justified because the federal government was not completely thwarted in its efforts to execute federal law. The appellate court rejected that argument, agreeing with the Trump Administration’s position that “Section 12406(3) cannot plausibly be read to mean that so long as some amount of execution of the laws remains possible, the statute cannot be invoked . . .”
The federal appellate court then concluded that “[u]nder a highly deferential standard of review, [the Trump Administration has] presented facts to allow us to conclude that the President had a colorable basis for invoking § 12406(3).” Thus, Trump had a strong likelihood of success on the merits of Newsom’s § 12406(3) claim and the Ninth Circuit accordingly stayed Judge Breyer’s injunction.
The morning following Trump’s win in the Ninth Circuit, the president found himself back before Judge Breyer for a previously scheduled hearing on Newsom’s Motion for a Preliminary Injunction. Judge Breyer opened the hearing by noting that the Ninth Circuit had converted his TRO into a Preliminary Injunction and then, after concluding Trump was likely to succeed on the merits of the § 12406(3) claim, the federal appellate court stayed the injunction. Judge Breyer then noted that as a district court judge, his decisions are reviewed by the Ninth Circuit, and just as the parties can’t ignore his decisions, he can’t ignore the Ninth Circuit’s decision.
But the Ninth Circuit never said anything about Newsom’s Posse Comitatus Act claim, Judge Breyer quickly noted, as he had not rule on that claim at the TRO stage and thus it was not presented to the appellate court. Instead, Judge Breyer’s TRO noted the court would consider the Posse Comitatus Act claim at the preliminary injunction hearing. And that was the original purpose of Friday’s hearing — to consider Newsom’s Motion for a Preliminary Injunction.
Things were more complicated, though, once the Ninth Circuit had converted Judge Breyer’s TRO into a Preliminary Injunction, which now remains pending in the appellate court. Generally speaking, an appeal deprives a lower court of jurisdiction over the case. But during Friday’s hearing, Judge Breyer suggested that he may nonetheless retain jurisdiction to modify his injunction based on the Posse Comitatus Act claim. He then directed the parties to file supplemental briefs on this jurisdictional question by Monday at noon.
This tack mirrors Judge Breyer’s prior approach, where he stressed the importance of hearing from both parties before ruling, only to then ignore the Trump Administration’s position and enter a glaringly flawed injunction against the president. That history suggests Judge Breyer is poised to again enter an injunction against Trump’s deployment of the National Guard to Los Angeles, while also adding in a bar on the president’s use of the Marines, based on the Posse Comitatus Act.
Such an injunction would be equally flawed for two main reasons. First, the Posse Comitatus Act is a criminal statute which does not provide for private enforcement by anyone, much less a state who suffers no injury. Second, Trump’s deployment of the National Guard and Marines to protect federal personnel and property does not violate the Posse Comitatus Act, which prohibits the “willfully use[] any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws . . .” But it is ICE and DHS who are executing the laws and not the Marines or the National Guard, with the latter merely protecting the federal agents and federal property. And even if it becomes necessary for members of the military to detain individuals to protect federal personal and property, the Trump Administration would still not be willfully using the military to execute the law.
That likely won’t matter to Judge Breyer, however, given he already granted Newsom one lawless TRO — but we won’t know for sure until later this week.