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Court of Appeal:
Judge Rules That Trump’s Use of National Guard Was Illegal
District Court Judge Finds That Executive Branch’s Tactics in Utilizing Troops in L.A. During Immigration Riots Violated Posse Comitatus Act, Enjoins Administration From Such Future Actions in California
By Kimber Cooley, associate editor
A District Court judge yesterday found that the Executive Branch violated the Posse Comitatus Act by utilizing the California National Guard and U.S. Marines in Los Angeles to conduct domestic law-enforcement operations—such as setting up protective perimeters, traffic barricades, and crowd control measures during immigration raids and protests over the summer—and enjoined the Trump administration from such further actions.
Finding that “there is an ongoing risk that [the administration] will act unlawfully” in the future, and noting that there are 300 National Guard members still stationed in the city, District Court Judge Charles Breyer of the Northern District of California decreed in yesterday’s order:
“Defendants are enjoined from deploying…or using the National Guard currently deployed in California, and any military troops heretofore deployed in California, to execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception…to the Posse Comitatus Act. The Court STAYS this injunction until 12:00 noon on Friday, September 12, 2025.”
On June 9, Gov. Gavin Newsom filed a complaint for declaratory and injunctive relief against President Donald Trump, the Department of Defense, and Secretary Pete Hegseth, claiming that the administration acted outside of its constitutional authority in federalizing the California National Guard to assist with protecting immigration authorities and federal buildings in the wake of a series of Los Angeles riots relating to recent deportation raids.
Trump Memorandum
The challenged action was a June 7 memorandum, signed by Trump, saying:
“In light of…credible threats of continued violence, by the authority vested in me as President…, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 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….”
Sec. 12406(3) provides that “whenever” the president is “unable with the regular forces to execute the laws of the United States,” the executive “may call into Federal service members…of the National Guard of any State in such numbers as he considers necessary to…execute those laws.”
Breyer found that the section does not create an exception to the Posse Comitatus Act, codified at 18 U.S.C. §1385, which specifies:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses 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 shall be fined under this title or imprisoned not more than two years, or both.”
Posse Comitatus Act
He wrote:
“Congress spoke clearly in 1878 when it passed the Posse Comitatus Act, prohibiting the use of the U.S. military to execute domestic law. Nearly 140 years later, Defendants—President Trump, Secretary of Defense Hegseth, and the Department of Defense—deployed the National Guard and Marines to Los Angeles, ostensibly to quell a rebellion and ensure that federal immigration law was enforced. There were indeed protests in Los Angeles, and some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.”
The jurist added:
“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into federal service in other cities across the country[,]…thus creating a national police force with the President as its chief. Because there is an ongoing risk that Defendants will act unlawfully and thereby injure Plaintiffs, Governor Newsom and the State of California, the Court ENJOINS Defendants from violating the Posse Comitatus Act….”
Breyer was appointed to the court by then-President Bill Clinton.
Earlier Action Overturned
On June 12, Breyer had granted Newsom’s request for a temporary restraining order based on findings that the defendants had acted ultra vires—or beyond their constitutional authorities—and violated the Tenth Amendment by calling on the troops to protect the immigration authorities and federal property. However, he found that the plaintiffs had not yet established a likely violation of the Posse Comitatus Act.
He entered an injunction requiring them to cease the deployment and to return control of the California National Guard to Newsom. Seven days later, the Ninth U.S. Circuit Court of Appeals stayed the order pending appeal, in a per curiam opinion, declaring that a court’s evaluation of an executive order issued under §12406 must be “highly deferential.”
Under that standard, the panel concluded that it was likely that the president lawfully exercised his statutory authority under the section and did not violate constitutional separation of powers principles. The opinion was signed by Circuit Judges Jennifer Sung, who was appointed to the court by then-President Joe Biden, as well as Mark J. Bennett and Eric D. Miller, each a Trump appointee.
Following the stay, Breyer proceeded to trial on the merits of the plaintiff’s Posse Comitatus Act claim.
Operations in Los Angeles
Breyer pointed out that “Task Force 51,” which consisted of 4,000 members of the California National Guard and 700 U.S. Marines, accompanied Immigration and Customs Enforcement officers in 75% of their enforcement and removal operations “in and around” Los Angeles through mid-July and posted in front of federal buildings, after some protests led to vandalism of downtown properties.
He added that “[n]ot all of Task Force 51’s deployments in Los Angeles were related to” such activities, citing the participation of 80 task force members in a Department of Homeland Security action—dubbed “Operation Excalibur”—in MacArthur Park on July 7, which was aimed at demonstrating “federal presence” in the area, for which Los Angeles Police Department was only given two hours’ notice.
After a lengthy discussion of the history surrounding the act, he remarked that the Trump administration’s assertion that §12406(3) operates as an exception to the Posse Comitatus Act “would represent a marked shift in the balance of power between the Executive and the Legislature.”
Saying that the argument is “largely due to the Ninth Circuit’s reading of §12406(3),” he opined:
“The Ninth Circuit’s expansive view of presidential discretion to invoke §12406(3) affects the viability of Defendants’ argument that the statute operates as an exception to the Posse Comitatus Act. [The defendants’] argument, when combined with the Ninth Circuit’s reading of §12406(3), would create a loophole…that would swallow the entire Act.”
Continuing, he added:
“The Court therefore concludes that §12406(3) is not an exception to the Posse Comitatus Act. If the President wants to avoid the Act’s restrictions, he must invoke a valid exception—like the Insurrection Act, along with its requisite showing that state and local law enforcement are unable or unwilling to act.”
Federal Property, Personnel, Functions
As to the defendants’ assertion that the president has inherent constitutional authority to protect federal property, personnel, and functions—and so did not move in violation of the Posse Comitatus Act—Breyer said that the argument has no basis in the text of the statute or in case law.
He pointed to the 1952 U.S. Supreme Court decision in Youngstown Sheet & Tube Company v. Sawyer, which held that then-President Harry Truman exceeded his Article II authority in ordering the government takeover of steel mills during a debilitating period of strikes. Turning to the utilization of Task Force 51, he opined:
“The record is replete with evidence that Task Force 51 executed domestic law in…prohibited ways. Task Force 51 set up traffic blockades on roads at a residential enforcement operation in Long Beach [and] as part of Operation Excalibur at MacArthur Park….Bystanders at multiple locations and even federal officials at trial were unable to distinguish Task Force 51 troops from federal law enforcement agents.”
Concluding that “Task Force 51 troops’ conduct clearly qualifies as Posse Comitatus Act violations,” he declared that “these violations were part of a top-down, systemic effort by Defendants to use military troops to execute various sectors of federal law…across hundreds of miles and over the course of several months—and counting.”
The U.S. Department of Justice indicated that it will immediately appeal the decision.
The case is Newsom v. Trump, 25-cv-04870.
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