In a stunning display of judicial overreach, Senior U.S. District Judge Charles Breyer — a Clinton appointee and brother of retired liberal Supreme Court Justice Stephen Breyer — ruled this week that President Donald Trump violated the Posse Comitatus Act by deploying California Army National Guard troops to protect federal officers and property during anti-ICE protests and immigration enforcement operations.
Breyer, who took senior status (semi-retired) back in 2011, presided over a three-day trial questioning whether presidents face any limits on using the military domestically. His decision, thankfully stayed by the Ninth Circuit just hours later, smacks of partisan activism from a judge more accustomed to sentencing guidelines than military command structures.
Parallels to L.A. Riots
I served in the California Army National Guard, retiring as a lieutenant colonel. My service included leading foot patrols as a captain during the 1992 Los Angeles riots. Judge Breyer’s ruling is not just wrong — it’s dangerously misguided.
Back then, the burning buildings and widespread looting equaled in one city over days what the entire nation experienced in the 2020 summer of unrest. Gov. Pete Wilson requested help and President George H.W. Bush federalized the Guard under the Insurrection Act.
The Insurrection Act is one of the key exceptions to the Posse Comitatus Act and allows the president to deploy the National Guard within the United States in certain extreme cases. Otherwise, the Posse Comitatus Act of 1878 prohibits the use of the military in domestic law enforcement without congressional approval.
My unit patrolled the Crenshaw District, restoring order in areas where local law enforcement had been overwhelmed, first under Title 32 (the Guard operating under state authority), then under Title 10 (the Guard operating under federal authority).
Because the Insurrection Act was invoked, even on Title 10 federal status, the Guard and the 4,500 active-duty Army and Marines who came in days later were able to enforce civilian law, though concerns over properly Mirandizing arrestees meant soldiers and Marines had to simply hold suspects until civilian law enforcement could properly arrest them.
Trump Activates Guard in California
Fast forward to this summer and the facts are straightforward. In June, Trump activated about 4,000 California National Guard members under Title 10 authority to support federal law enforcement officers conducting immigration raids. These troops weren’t arresting protesters or enforcing state laws — they were safeguarding federal personnel and facilities from riots targeting ICE operations.
Gov. Gavin Newsom, ever the grandstander, objected vehemently, but Trump proceeded without invoking the Insurrection Act. The administration argued, correctly, that the Posse Comitatus Act didn’t apply because the Guard was in a support role, not a policing one.
Breyer disagreed, bizarrely citing testimony from Maj. Gen. Scott Sherman, who oversaw the deployment. Sherman noted that soldiers were trained on Posse Comitatus compliance, which Breyer twisted as “evidence” the law was relevant. That’s nonsense. As anyone with military experience knows, as part of any deployment, Army units are briefed on the rules of engagement — what you can and cannot do.
Even so, some reports of Maj. Gen. Sherman’s courtroom testimony suggested he may have had some misgivings. Sherman indicated that soldiers were trained on Posse Comitatus and provided papers that included a list of activities it prohibited, including doing security patrols and conducting traffic control, crowd control, and riot control — unless done while protecting federal property or personnel.
Past Legal Mistakes
Some of Maj. Gen. Sherman’s apparent reticence in the courtroom — an unfamiliar battlefield for the combat veteran — may stem from consistently bad advice proffered by Army lawyers (JAGs) during the L.A. riots. When the active-duty JAGs activated with the 7th Infantry Division, then at Fort Ord, arrived in L.A. in 1992, they erroneously ordered the Guard to cease civilian law enforcement efforts while prohibiting the active-duty soldiers and Marines from directly aiding in law enforcement.
They didn’t understand that the president’s invocation of the Insurrection Act allowed both active-duty and federalized National Guard soldiers to enforce civilian law. An after-action report called this a “critical error” by Army lawyers, while the Webster Commission’s findings on the riot cited a “mistaken impression” that Posse Comitatus prohibited law enforcement activities post-federalization, reducing Guard responsiveness from 100 percent to 20 percent of police requests. Many Guard units ignored the lawyers — knowing the law as citizen-soldiers better than the JAGs (who, as Army veterans know, skew to the left).
Trump Was Protecting Federal Assets
The Trump team insisted Posse Comitatus wasn’t in play, and they’re right — this was about protecting federal assets, not creating a “national police force,” as Breyer hyperbolically claimed in his opinion. No one in a military uniform arrested anyone.
This ruling ignores the president’s clear options for deploying the Guard. First, under Title 10 without the Insurrection Act, the president can federalize troops for active duty to protect federal property or personnel, but they can’t perform direct law enforcement duties — that would violate Posse Comitatus. This is exactly what Trump did in California: deployed the Guard in a limited, defensive role amid threats to federal operations.
Second, Title 10 with the Insurrection Act allows federal active-duty troops to engage in direct law enforcement when unrest hinders the execution of laws, as Bush did in 1992 or as Presidents Dwight Eisenhower and John F. Kennedy did to enforce civil rights in the South. The act, dating to 1807, empowers the president to act unilaterally if states fail to maintain order, ensuring equal protection under the 14th Amendment. (For a deeper dive, see my 2020 piece on whether Trump should invoke it during that summer’s riots.)
Third, Title 32 offers states active-duty troops with federal reimbursement, but it requires the governor’s agreement — except in Washington, D.C., where the president effectively acts as governor. Newsom refused, forcing Trump’s hand to Title 10. This hybrid status keeps the Guard under state command but federally funded, ideal for cooperative scenarios but useless when blue-state governors like Newsom prioritize politics over security. Under Title 32, Guard soldiers can enforce civilian law and may be deputized to make arrests, though prudential concerns over procedural matters may limit law enforcement activity, as was the case in 1992.
Breyer’s order, limited to California, has little immediate impact — most troops have demobilized, with only about 300 remaining. But its implications are nationwide, especially as Trump deploys Guard units in D.C. and eyes other crime-plagued blue cities.
Newsom crowed on social media that Trump “LOSES AGAIN,” calling it an illegal “militarization” against U.S. citizens. This from a governor and putative presidential candidate whose state is a sanctuary for illegal immigrants wherein federal agents risk their lives enforcing the law.
Breyer warns of a “national police force with the President as its chief,” yet his ruling aims to handcuff the executive’s ability to defend federal interests against domestic threats.
Breyer’s decision will be overturned on appeal, potentially reaching the Supreme Court. The Ninth Circuit’s stay signals as much. We can’t afford judges substituting their policy preferences for constitutional realities. Trump acted lawfully to protect federal property and law enforcement officers; Breyer’s ruling protects chaos.