BREAKING: Clinton-appointed Judge Charles Breyer has ordered Trump to return control of the National Guard back to California.
Gov. Newsom said “the National Guard will come back under my authority by noon tomorrow” and says they will go back to border security and fentanyl interdiction.
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He also said they will go back to vegetation and forest management for wildfire prevention.
A federal appeals court late Thursday paused a ruling that required President Donald Trump to return control of members of California’s National Guard to the state.
Senior US District Judge Charles Breyer had ruled that Trump unlawfully federalized thousands of members of California’s National Guard and must return control of the troops to the state by mid-day Friday. But the order from the 9th US Circuit Court of Appeals puts that on pause.
Breyer’s ruling, nevertheless, is a significant win for Democratic Gov. Gavin Newsom, who sued Trump and Defense Secretary Pete Hegseth earlier this week after the president called the troops into federal service in the wake of protests in the Los Angeles area over Trump’s hardline immigration policies.
“His actions were illegal – both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution. He must therefore return control of the California National Guard to the Governor of the State of California forthwith,” the judge wrote in his 36-page ruling.
Breyer, of the federal district court in San Francisco, said Trump had not satisfied any of the requirements that must be met in order to call up members of a state’s National Guard and that the president had not complied with a procedural aspect of federal law that requires presidents to issue an order “through the governor” when they want to federalize state troops.
“Regardless of whether Defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California’s National Guard, they did not issue their orders through him, and thus failed to comply with” federal law, he wrote.
The panel of three judges from the 9th Circuit – two Trump appointees and an appointee of former President Joe Biden – said it will hold a hearing Tuesday on the issue.
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Trump on Friday morning thanked the federal appeals court.
“If I didn’t send the Military into Los Angeles, that city would be burning to the ground right now. We saved L.A. Thank you for the Decision!!!” Trump wrote in a Truth Social post.
In federalizing the guardsmen, Trump pointed to a provision of federal law that says he can call up a state’s troops to suppress a “rebellion.” But Breyer said in his ruling that “the protests in Los Angeles fall far short of ‘rebellion.’”
“Violence is necessary for a rebellion, but it is not sufficient,” Breyer wrote. “Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are ‘armed’ in a 1903 sense – the Court is aware of no evidence in the record of actual firearms – there is little evidence of whether the violent protesters’ actions were ‘open or avowed.’”
The judge added: “Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole; the evidence is overwhelming that protesters gathered to protest a single issue – the immigration raids.”
And he was extremely critical of arguments pushed by DOJ that the protests in and around Los Angeles against Trump’s immigration policies constituted a rebellion.
“(T)he Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion,” he wrote.
In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone,” Breyer said. “The idea that protesters can so quickly cross the line between protected conduct and ‘rebellion against the authority of the Government of the United States’ is untenable and dangerous.”
The judge also said Trump had violated California’s rights under the 10th Amendment, writing that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws.”
“The federalization of 4,000 members of California’s National Guard necessarily prevents Governor Newsom, as the commander-in-chief of his state’s National Guard, from deploying them as needed,” Breyer wrote.
