Regular readers know that yesterday, Gavin Newsom filed for a motion for a temporary restraining order (‘TRO’) attempting to stop Trump from stopping the riots in Los Angeles. The judge partially denied it, in the sense that he didn’t give one right away, and set a hearing for Thursday, June 12, and a very short briefing schedule, saying that the Federal Government had only until 11:00 AM Wednesday, to file their opposition to their motion to dismiss and giving Newsom’s team until 9:00 AM Thursday to file any response to that opposition before a hearing in the afternoon. Professor Cleveland (who has been essential in covering much of the incredible lawfare we have seen against the second Trump administration), has covered that brief in detail:

The second picture highlights some text from the opposition, but we will add text from the prior page to make the sentence more grammatically correct:

The extraordinary relief Plaintiffs request would judicially countermand the Commander in Chief’s military directives— and would do so in the posture of a temporary restraining order, no less. That would be unprecedented. It would be constitutionally anathema. [sic] And it would be dangerous.

The first picture is probably designed to highlight this passage:

Plaintiffs also object that the President did not consult with, or obtain the consent of, the Governor, but the statute imposes no such requirement. It merely directs, as a procedural matter, that the President’s orders be conveyed ‘through’ the Governor. They were.

The second and third pictures highlight this passage:

The President complied with this procedural provision. Secretary Hegseth’s memorandum was issued to California’s Adjutant General, a state cabinet-level official who is required under California law to perform ‘duties consistent with the regulations and customs of the United States Army, United States Air Force, and the United States Navy[,]’ including ‘issu[ing] all orders in the name of the Governor.’ Cal. Mil & Vet Code § 163 (emphasis added). The memorandum bore the label ‘THROUGH: THE GOVERNOR OF CALIFORNIA.’ … And Secretary Hegseth sent a second memorandum federalizing an additional 2,000 Guardsmen on Monday with the same label. … There is no dispute that the Governor had actual and contemporaneous knowledge of the order—indeed, he acknowledged that it was forthcoming before it even issued. This procedural objection is thus meritless, and certainly not a basis to issue an unprecedented injunction against the deployment of military forces.

Plaintiffs, however, interpret the statute to ‘require[] orders under § 12406 be issued by the Governor.’ …  But Section 12406 does not use the word ‘by.’ And there is a fundamental difference between orders issued ‘by’ a person (making them the decisionmaker) and orders issued ‘through’ that person (making them a mere conduit for a decision already made). The latter better aligns with the purpose of this procedural requirement, as the federalization of the California National Guard requires a careful handover of command and control from the State Commander in Chief (the Adjutant General) to the Federal Commander-in-Chief. Orders going ‘through’ the Governor, in particular the Governor’s Adjutant General, provides proper notice and avoids command confusion which is critical in an emergency.

(Citations removed, italics changed to boldface.)

The pictured text:

Meanwhile, when Congress has wanted to give the Governor veto power, it has done so expressly. For example, the Secretary of Defense may ‘order a member of a reserve component under his jurisdiction to active duty’ except that members ‘may not be ordered to active duty . . . without the consent of the governor or other appropriate authority of the State concerned.’ 10 U.S.C. § 12301(d) (emphasis added). Likewise, the Secretary may order a member of the Army, Navy, Marine, or Air Force Reserves to active duty to provide assistance in response to a major disaster or emergency, but only after receiving a request from a Governor. 10 U.S.C. § 12304a(a). Yet Section 12406 omits any language even hinting that Governor could withhold his consent.

In short, Section 12406 affords no veto to Governor Newsom over the President’s decision to call forth the guard, just as it afforded no veto to Governor Faubus when President Eisenhower last invoked the predecessor to Section 12406 to ensure that the enforcement of federal law was not obstructed.

First off, let’s note that he is referencing when Eisenhower had to federalize the National Guard to enforce the decisions of the Supreme Court desegregating our schools, an obvious attempt to analogize the two situations. That is the subtext, here.

Further, what they are arguing in this text of this passage is this. Newsom is saying that he didn’t consent to any of this. They are saying the federal law doesn’t require his consent.

Partially, they are doing this by an expressio unius argument and by comparing other statutes. Expressio unius is legal shorthand for expressio unius est exclusio alterius, which translates roughly to ‘the expression of one is the exclusion of the others.’ A simple example is that imagine if a man had four sons named Matthew, Mark, Luke and John (this author actually knew four brothers by those exact names). Imagine this father writes a will that says, ‘I leave half of my estate to my wife, and the other half to my sons Mark and John, to be split between them.’ A court would read that as not only including Mark and John in that will, but as excluding Matthew and Luke just by not mentioning them. By the expression of the names of some of the sons, he is implying the exclusion of the others. It is an ancient presumption in legal interpretation that existed before America existed and courts tend to assume every statute is written with that rule in mind.

Here, the DOJ is combining that principle with another interpretive principle that you interpret the federal statutes in light of what other statutes say, especially if they are on similar subjects. So, they are pointing out that in other statutes dealing with when you call out the military, the statute specifically says that gubernatorial consent is required. So, by expressly including a gubernatorial consent requirement in those other statutes, the implication by the fact that there is no such provision in the relevant statute (10 U.S.C. § 12406) is that there is no requirement for such consent in that statute.

Again, the text in the picture:

Finally, even if Plaintiffs’ interpretation of the statute were correct, the only party acting unlawfully would be Governor Newsom—not President Trump or Secretary Hegseth. Section 12406 uses the mandatory ‘shall,’ depriving the Governor of any possible discretion in whether to issue an order. So if the order was not issued ‘through’ the Governor via the Adjutant General who acts in his name, then the Governor should have issued the order himself, rather than drafting a press release objecting to the presidential memorandum. His failure to comply with President Trump’s lawful order to federalize California’s guardsmen cannot somehow support an injunction against the federal government.

In statutes, the term ‘may’ almost always means it is permissive, while ‘shall’ is mandatory. That is, when a statute says you may do something, you may or may not do it. Like imagine if your state says that you may apply for a driver’s license when you turn sixteen. By comparison, if hypothetically your state said that every person shall apply for a driver’s license when they turn eighteen, you would have no choice but to do it. The 'shall' in that statute would suggest that Newsom has no choice.

The pictured text:

As William Rehnquist concluded as the head of the Department of Justice’s Office of Legal Counsel, ‘the Posse Comitatus Act does not impair the President’s inherent authority to use troops for the protection of federal property and federal functions.’ Mem. Op., Authority to Use Troops to Prevent Interference With Federal Employees by Mayday Demonstrations and Consequent Impairment of Government Functions, U.S. Dep’t of Justice, Off. of Legal Counsel, at 343 (April 29, 1971), https://www.justice.gov/file/147726/dl. Nor does it ‘prevent the use of troops to protect the functioning of the government by assuring the availability of federal employees to carry out their assigned duties.’ Id. Thus, in 1971, Mr. Rehnquist held that the President could use troops to respond to demonstrators who threatened to ‘prevent[] federal employees from reaching their agencies.’ Id. Likewise, the Supreme Court recognized in In re Neagle, 135 U.S. 1, 65 (1890), that troops could be used to prevent an obstruction to the U.S. mail:

Now, there is a lot to unpack, there, to explain things.

First, we never heard of the Posse Comitatus Act until we reached our last year of law school and we are going to assume that most lay people haven’t heard of it, either, with the possible exception of people who served in the military. That is a statute currently codified as 18 U.S. Code § 1385, that basically says that unless the Constitution or a statute says otherwise, the President can’t use the military to carry out law enforcement functions. So if Trump is using the military that way, he has to find an exception in either the Constitution or a statute.

(Hilariously, the statute specifically mentions the Space Force. They laughed at Trump when he created the Space Force but they not only kept it, they codified it.)

So previously they were talking about statutory exceptions. Now they were talking about constitutional exceptions, citing an opinion put out by the Department of Justice’s Legal Counsel. This author has talked about these kinds of opinions before, when discussing whether Trump could declare some or all of Biden’s pardons a nullity, writing:

[T]his is just essentially one lawyer’s writing. It does not have the force of law. It tends to be learned analysis that one should take seriously on those terms, but it’s not the same as, say, a Supreme Court opinion, or even the opinion of a lower court judge.

And that analysis is correct when we are talking about a random lawyer working for the government. But in this case, the memo was written by future Supreme Court Chief Justice William Rehnquist, which obviously increases the prestige behind it. Still, it is more important that the Supreme Court apparently agreed, as the last citation indicated.

Finally:

As for our opinion of the opposition, we think most of this well written… but there is one embarrassing mistake right toward the beginning—the one referenced in the headline. On the third page you get this:

That is, they are supposed to have included a table of authorities and forgot to do so. They even highlighted it to make sure they didn't forget. This is also after the Table of Contents on the page before, which was completely blank—not even an ‘[insert]’ in it. A table of authorities is just a list of everything you are citing, including Constitutional provisions, statutes, even books if you happen to mention them. And they put in a clear placeholder telling them to insert it but forgot to do it.

Excuse us while we cringe to death.

We are not even making fun. As we said on Twitter/X: ‘I’m not making fun. I’m watching my worst nightmare unfold.’ This author is too scared of making a mistake like that himself to laugh about it. And to be blunt, when a judge sets such a short briefing schedule like this, errors like this are more likely.

For instance, if you jump to the end of the motion, you see that it is officially signed as follows:

BRETT A. SHUMATE

Assistant Attorney General

Civil Division

ERIC J. HAMILTON

Deputy Assistant Attorney General

Federal Programs Branch

ALEXANDER K. HAAS

Director

Federal Programs Branch

/s/ Christopher D. Edelman

CHRISTOPHER EDELMAN

Senior Counsel

GARRY D. HARTLIEB

BENJAMIN S. KURLAND

Trial Attorneys

We cut out stuff like bar numbers, addresses, email address and so on, but we will note that Mr. Edelman is the only person who actually gave his (work) address, email, and phone number and he is the only one who gave his official signature (that /s/ thing which takes the place of a real signature on many electronic documents). That tells us that chances are Mr. Edelman probably wrote the bulk of it (although that is really just an educated guess), with help from Kurland and Hartlieb, and probably final approval from Shumate, Hamilton and Haas. That’s a lot of hands to go through within about twenty-four hours, which means they probably had very little time for the actual writing. As for how such a mistake could make it past so many people, we would guess all the approving lawyers assumed that the Table of Contents and Table of Authorities would be filled in before final submission, only for it to be overlooked by the last person to review before submission. But that is just our educated guess.

It’s not the end of the world and we don’t believe the judge would even entertain the thought of striking it from the docket for that reason. But when you write anything you hope that the reader forgets that a fallible human being has written it. You want your argument to read as if this was written by the finger of G-d on a tablet: You want it to be that authoritative. And making a mistake like this makes you look more like this:

It just degrades the persuasiveness of the entire piece when you make such a huge mistake right at the beginning, because it lowers the respect the court might have for you as a writer.

Aside from that superficial mistake, we think a bit more of the document is worth analyzing. To put things in perspective (trust us, this will be important in a minute), the Federal Government is primarily citing 10 U.S.C. § 12406 as authority for this action (specifically, Newsom is claiming Trump couldn't federalize the National Guard). It says:

Whenever--

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

So read it carefully, there will be a quiz later. 

/joke

Turning to the opposition, we think it is interesting that they give the official federal account of how the violence unfolded:

On Friday, June 6, 2025, officers from the Department of Homeland Security’s Immigration and Customs Enforcement (‘ICE’) Enforcement and Removal Operations (‘ERO’) conducted federally authorized operations in Los Angeles, California. See Decl. of Ernesto Santacruz Jr., ¶ 7 (‘Santacruz Decl.’), Ex. 1. 

To break in for a moment, we don’t think it is an accident that they are relying on the declaration of a person with a Hispanic name. Optics matter. He is cited throughout the rest of the passage:

A crowd gathered at an enforcement site and tried to prevent ICE officials from operating by throwing objects at ICE vehicles. Id. Several individuals were arrested in the operation and brought to ERO’s federal facility in downtown Los Angeles. Id. Around 5:00 pm PT that night, a crowd began to gather at the ERO facility. Id. ¶ 9. The protests quickly turned violent. Id. They spread across the downtown area, threatening federal facilities and other public buildings. Id. ¶ 10. Protesters pinned down Federal Protective Services (‘FPS’) officers who were left severely outnumbered while trying to defend a parking garage connected to several federal buildings. Id. ¶ 11. Protesters threw concrete chunks, bottles of liquid, and other objects at the officers. Id. Protesters also attempted to use a large rolling commercial dumpster as a battering ram to breach the parking garage, causing damage to federal property. Id.

Officers feared for their safety. Id. ¶ 13. ICE and Homeland Security Investigations (‘HSI’) officers responded to support the FPS officers under siege and attempted to use non-lethal force to disperse the crowd. Id. The federal officers managed to prevent a breach of the facility, but it took Los Angeles Police Department (‘LAPD’) officers nearly an hour and a half to arrive and assist the federal officers in pushing the crowd back from the parking garage gate. Id. Meanwhile, the protests turned extremely violent, with news reports showing demonstrators using chairs, dumpsters, and other weapons. Id. ¶ 14. Once on scene, LAPD declared an ‘unlawful assembly’ around 7:00 pm and ordered protesters to disperse. Id. ¶ 16. Many did not and instead began attacking LAPD officers. Id. The scene was not clear until around 11:00 p.m., leaving extensive damage to multiple federal buildings. Id. ¶ 17

It goes on to talk about Trump and Newsom’s response, and how it escalated from there and you might want to read the whole thing, but that is enough for us, for now.

Second, Professor Cleveland touches on it, but the courts have long called the central question—whether or not there is a sufficient emergency—a ‘non-justiciable political question.’ In our opinion, that is a terrible name for the doctrine. Every question before the Supreme Court is arguably political. But here, the basic idea is that certain issues are given to other branches of the Federal Government (the 'political branches' according to the courts) and the courts are not allowed to question them. One particular type of ‘political question’ relates to more or less the war powers. It is not a court’s job to decide when a war starts or ends, or when there is an emergency justifying when to call out the militia. So, the DOJ’s first argument is that this is the President’s decision and the courts are not supposed to look into this at all. And that is in part based on a decision going back to the Madison presidency.

You might know that Madison was probably the most important founder in the writing of the Original Constitution and Bill of Rights. The courts do take the practices that occurred early in the republic very seriously when determining what the Constitution allows, especially when it is carried out by such a central founder. In other words, the courts tend to assume that most of what the early presidents and the early congresses did was constitutional and interpret the Constitution in light of that assumption.

The DOJ also does a good job excoriating Newsom’s arguments. For instance, Newsom’s team attempted to say that Trump cannot call this a rebellion by citing Black’s Law Dictionary. When you are dealing with a statute that doesn’t actually define its terms, dictionaries such as this are a good place to start when defining the term. But apparently the DOJ caught Newsom being selective:

Plaintiffs cite one legal authority—Black’s Law Dictionary—in their rebellion argument, and quote selectively from it. … Black’s Law Dictionary’s definition of the term ‘rebellion’ provides three definitions of the term, each embracing something less than ‘an organized attempt to change the government or leader of a country.’ TRO Mot. at 9 (quoting Rebellion, Black’s Law Dictionary (12th ed. 2024)). ‘Rebellion’ means:

> 1. Open, organized, and armed resistance to an established government or ruler; esp., an organized attempt to change the government or leader of a country, usu. through violence. Cf. civil war under war (1). 2. Open resistance or opposition to an authority or tradition. 3. Hist. Disobedience of a legal command or summons.

Rebellion, Black’s Law Dictionary (12th ed. 2024).

(Citations omitted.) That second definition would seem to be enough to justify Trump in calling this a rebellion. And we will note that by the first definition, the one Newsom advocated for, the entire Civil War wasn't a rebellion. The Confederacy wanted to break off from the Union, not to take the country over. It also wouldn't cover other famous rebellions such as the Whiskey Rebellion or numerous slave rebellions.

And they also take time to excoriate Newsom’s mostly peaceful BS, by using the information Newsom’s own team submitted to the court:

While characterizing the protest activity as ‘[p]rimarily peaceful,’ Plaintiffs admit that Los Angeles witnessed ‘some level of civil disturbance’ and that the situation required local authorities to ‘mak[e] dozens of arrests.’ TRO Mot. at 9. That is a severe understatement. Their own submission to the Court substantiates the President’s judgment many times over. One of Plaintiffs’ declarants highlights the severity of the situation: ‘[S]ome protesters unfortunately began to engage in dangerous behavior such as throwing rocks and other objects, including a Molotov Cocktail at deputies damaging vehicles, burning a vehicle, looting a gas station, and vandalizing property.’ Declaration of Brian Olmstead ¶ 9, ECF No. 8-2. ‘Two deputies were injured during the incident.’ Id.

The articles submitted by Plaintiffs also describe the dangerous conditions in Los Angeles, with mobs resisting federal authority in a manner that rises to the level of rebellion. Plaintiffs’ submission to the Court contains five images of burning or burnt cars. ECF No. 8-1, at 47, 93, 102, 121, 123. It contains a sixth image of an unidentified burning object. ECF No. 8-1, at 104. And they have also submitted images of (in their sources’ words) demonstrators ‘blocking traffic on [a] busy thoroughfare’ and a ‘massive crowd’ pushing to a wall barrier. ECF No. 8-1, at 120, 122. Plaintiffs’ articles say that ‘[d]emonstrators blocked entrances and exits to [the Federal Building in downtown Los Angeles].’ ECF No. 8-1 at 54. They also ‘spray-painted anti-ICE slogans on [a] building’s exterior walls’ and ‘attempted to physically stop ICE vehicles.’ Id. ‘Dozens of buildings were tagged with graffiti, including the LAPD Headquarters, the U.S. Courthouse and the old Los Angeles Times building.’ ECF No. 8-1, at 121.

Plaintiffs’ submission also reflects the crowd’s refusal to comply with local authorities’ orders. ‘The crowd of demonstrators . . . moved through the city despite the area-wide dispersal order, again lighting fireworks and throwing projectiles at police vehicles driving by.’ ECF No. 8-1 at 121. ‘Several fires were set in dumpsters and trash bins and at least one store had windows shattered by alleged looters.’ Id. It also reflects local authorities’ inability to adequately respond. An article submitted by Plaintiffs reports that ‘[a] federal law enforcement official with knowledge of the operations told CBS News that ICE requested assistance from LAPD multiple times over the course of Friday night.’ ECF No. 8-1, at 123. ‘[A] senior city official in L.A. told CBS News that it took LAPD 55 minutes to respond.’ Id.

And here comes the knockout punch, for those who paid close attention to the language of the statute:

At minimum, on Plaintiffs’ own record, the conditions in Los Angeles qualify as a ‘danger of a rebellion’ against federal authority. 10 U.S.C. § 12406(2) (emphasis added). Plaintiffs argue that a rebellion was not present, but they never contend that there was no danger of a rebellion.

In other words, the statute doesn’t require a full-on rebellion. It can be invoked when there is a danger of rebellion, and Newsom’s team never said there wasn’t at least a danger of rebellion and the information they submitted to the court tends to show at least that much. That is the DOJ is smacking Newsom's team around with their own evidence. And failing to address teh danger of rebellion seems like kind of an oversight to us. Indeed, by the ordinary rules of argument, it is too late for Team Newsom to dispute that point now, although judges are not always strict in enforcing that rule.

Finally, we will say something about the concern that however clear the rules are against granting Newsom’s motion, that a federal judge might still do it. This is basically the presidents’ war powers we are talking about. This is the power to prevent rebellion in the United States. We cannot emphasize how much this is a third rail to the judiciary.

So, we doubt that even the most wild-eyed leftists on the bench would issue this proposed restraining order or a preliminary injunction, but from what we are hearing, this Judge Breyer is not one of those wild eyed leftists. Indeed, in the comments to our last post, ‘Crackerbox Palace’ stated that ‘I’ve had cases in front of Judge Breyer. Dude doesn’t play.’ When asked to elaborate, he said:

He follows the law. Unlike a few of the brethren at ND Cal - like that jerk Vaughan Walker.

I imagine when he saw that Newscum was going ex parte his reaction was ‘not in my court, pal.’

Check our prior post, if you don’t know what ex parte means. This is an unverified statement but we think it is pretty credible. And even if Judge Breyer did go off the reservation, we think the Supreme Court would break a land speed record in at least staying the decision. The Supreme Court can move very fast when it wants to, as former President George W. Bush and never-President Al Gore might remember.

And part of the reason why is that Roberts might be worried that Trump is getting to the point that he might actually start to disobey the orders of the judiciary. Contrary to what the left claims, he hasn’t done it yet, but at some point he might get fed up enough to do it. And this might be exactly the kind of thing that triggers it. We will probably talk about the legal theory that might allow Trump to do exactly that in the future, but for now, ask yourself exactly what the courts could do to enforce their orders? Not much, if we are honest. For instance, they could order Trump to be jailed for contempt, at least in theory, but what if he refuses to go? What if the Secret Service refuses to allow him to be jailed? Then what happens?

Well, of course, the other way to enforce it is impeachment and removal. Does anyone believe that the Republican-run House would even impeach him for quelling a riot? And even if Democrats win the House next year and impeach him, you still need two-thirds of the Senate to actually remove him. There is little chance that the Democrats will get that many seats in the Senate, or convince enough squish Republicans on that to get that two-third vote when all Trump was doing was stopping a riot. So, Roberts would be concerned about what would happen to the judiciary, as an institution, if a judge issues an order and Trump successfully defies it. And for that reason, we think he will ultimately make sure it doesn’t come to that.

Ultimately, we think that Newsom’s litigation strategy might backfire on him and this brief certainly increases the chances of that happening. An old adage among lawyers is that ‘good facts make good law and bad facts make bad law.’ If you want to limit the power of the president to call out the national guard, these are bad facts from that perspective. Or good facts, if you think that using this kind of power is justified. The end result of all of this might be a precedent clearly establishing that Trump can do this sort of thing to suppress mob violence like this.

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Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.

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