SAN FRANCISCO — A federal judge cast doubts Thursday on the legality of President Donald Trump’s deployment of the National Guard in Los Angeles, warning that the Trump administration’s contention that the president’s position cannot be second-guessed — even by the courts — evoked the founders’ fear of a monarchy.
“That’s not where we live. We live in response to a monarch. This country was founded in response to a monarch,” U.S. District Judge Charles Breyer said during an emergency court hearing on a
lawsuit filed by California Gov. Gavin Newsom. “The Constitution is a document of limitations.”
Breyer suggested Trump’s call-up of 4,000 members of California’s National Guard to the streets of Los Angeles — over
Newsom’s fierce objection — may have been legally deficient.
The judge said Trump did not appear to have issued the order “through” Newsom himself, despite a
legal requirement that such orders pass through the governor of the state involved.
“I’m trying to figure out how something is ‘through’ somebody if in fact you didn’t give it to him,” Breyer wondered aloud. “It would be the first time I’ve ever seen something going ‘through’ somebody if it never went to them directly.”
And the judge also sounded dubious of Trump’s claim that the unrest in Los Angeles posed a “danger of rebellion,” one of several possible predicates for his power to federalize California’s Guard troops. Breyer forcefully resisted the Justice Department’s contention that Trump’s claim of a potential rebellion is unreviewable by the courts.
“That’s the difference between a Constitutional government and King George,” Breyer said. “It’s not that a leader can simply say something and it becomes it.”
Justice Department attorney Brett Shumate insisted that violence directed at federal officials over the weekend was sufficiently dangerous to support Trump’s finding. Trump on Saturday ordered the guard to Los Angeles after a wave of protests there against the administration’s deportation policies turned violent.
Shumate argued that Trump had satisfied the law’s procedural requirements as well by communicating his order through Defense Secretary Pete Hegseth to the commander of the California National Guard, who answers to Newsom.
Even if the judge found fault in that process, Shumate said, it wasn’t enough to unwind the deployment. The DOJ attorney dismissed any slip-up as “a foot fault,” that the White House should be allowed to fix with new paperwork.
Breyer, 83, a Clinton appointee and the
younger brother of former Supreme Court Justice Stephen Breyer, promised to make a determination “very soon,” perhaps as early as Thursday afternoon. And despite the judge’s inclinations in court, it’s unclear just what relief he could grant.
The only immediate, urgent ask from California Attorney General Rob Bonta’s office, which filed the lawsuit on Newsom’s behalf, was that National Guard troops be barred from taking part in immigration enforcement operations. However, it seemed during the hearing that Breyer was toying with the idea of declaring the whole National Guard deployment illegal.
At one point during the hearing, Breyer held up a pocket copy of the Constitution and waved it in front of Shumate. After the DOJ attorney said Trump has broad powers over the military under the founding document, the judge said those weren’t the only issues implicated by the case.
“This is a country that champions the right to free speech and champions the right to redress grievances. That’s also in the book,” the judge said.
Breyer did suggest several times that he was uncomfortable with the notion of micromanaging the operation of the military. He declined to immediately consider Newsom’s request to block the deployment of
700 active-duty Marines to Los Angeles, saying any action seemed premature because they hadn’t yet arrived in the city.
Shumate asked Breyer to stay the effect of any order he might issue for 48 hours so that the Trump administration could appeal. The state’s lawyer, Nicholas Green, opposed any such delay.
Newsom’s team, which filed the lawsuit on Monday, asked the judge on Tuesday to issue a temporary restraining order within two hours. The judge instead gave the Justice Department a day to file a written opposition and setting the hearing he held Thursday.
