OPINION / COLUMN -- “At this early stage of the proceedings, the Court [for the Northern District of California] must determine whether the President [Donald J. Trump] followed the congressionally mandated procedure for his actions. He did not. 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.”
That was the decision of United States District Judge Charles R. Breyer, Northern District of California, on June 12. It was paused last Thursday by a three-judge panel from the 9th Circuit Court of Appeals which will hold a hearing today.
But Judge Breyer’s opinion is worth further study because it not only lays out the law underlying a President’s ability to take control of state National Guard but it also raises serious constitutional questions that are directly relevant to the protests happening now in Los Angeles.
First, some facts from the Breyer opinion: Governor Newsom serves as Commander-in-Chief of the California National Guard when it is under state control. California has the largest National Guard in the country, with 18,733 members, 12,212 of whom are currently available.
President Trump is the Commander-in-Chief of the U.S. Armed Forces, including the National Guard when it is under federal control. A president can call the National Guard into federal service under Title 10, section 12406, of the United States Code. That is what happened here.
Let’s remember how we got here.
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On June 6, 2025, Immigration and Customs Enforcement (ICE) began carrying out immigration raids in Los Angeles. ICE executed search warrants at multiple locations across the city and as Breyer put it, “Federal immigration authorities have been ramping up arrests across the country to fulfill President Donald Trump’s promise of mass deportations.”
Last month, The Washington Postreported that White House Deputy Chief-of-Staff Stephen Miller and Homeland Security Secretary Kristi L. Noem were raising the daily nationwide target for ICE to arrest migrants for deportation to 3,000, more than double the 1,270 they had been targeting prior to last month. President Trump and others have previously talked about a goal of one million deportations in 2025, which appears now to be unlikely.
When ICE targeted several locations in downtown L.A., including two Home Depot stores, a donut store, and a clothing wholesaler, there were public protests in the Garment District and at the Metropolitan Detention Center. The protests were explicitly about the immigration raids where some 80 people had been detained and 44 arrested.
That evening, as Breyer described it, “protesters reportedly marched in downtown Los Angeles…Some protesters threw “concrete chunks, bottles of liquid, and other objects at Federal Protective Service officers guarding a parking lot gate; some protesters attempted “to use large rolling commercial dumpsters as a battering ram…Officers protected the gate entrance with pepper balls and other nonlethal force, until LAPD [Los Angeles Police Department] arrived and pushed the crowd away.”
Two federal buildings were vandalized and by 11 p.m. that night, many of the protesters had left and some 11 people had been arrested for engaging in unlawful behavior.
The next day, on June 7, some Customs and Border Protection officers arrived in Los Angeles from San Diego to assist ICE with immigration enforcement operations, but in Washington, Trump had prepared other plans.
The Militia Act of 1903 authorizes the President under section 12406 to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary,” but only if the U.S. “is invaded or is in danger of invasion by a foreign nation; there is a rebellion or danger of a rebellion against the authority of the Government…or the President is unable with the regular forces to execute the laws of the United States.”
The act as amended, also says any orders issued under section 12406 be issued “through the governor of the respective State … from which State … such troops may be called.” Congress later amended the statute to add the requirement that National Guard federalization orders “shall be issued through the governors.”
According to the Breyer opinion, the President had drawn up a memo to Defense Secretary Pete Hegseth and Homeland Security Secretary Noem that asserted, “[N]umerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by [ICE] and other United States Government personnel. To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”
In response, Trump’s memo explained that due to “these incidents and credible threats of continued violence,” he was calling “into Federal service members and units of the National Guard under 10 U.S.C. section 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”
Breyer pointed out that the memo did not name California, Los Angeles, or any other geographic area.
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Trump’s memo directed Hegseth “to coordinate with the Governors of the States and the National Guard Bureau in identifying and ordering into Federal service the appropriate members and units of the National Guard under this authority.” Trump called for “at least 2,000” Guard personnel to be on duty “for 60 days,” and added that Hegseth could “employ any other members of the regular Armed Forces as necessary.”
That same night, June 7, Hegseth announced that 2,000 members of the California National Guard were being “called into Federal service effective immediately for a period of 60 days.” The Hegseth order was sent to the California National Guard Adjudant General.
Breyer’s opinion notes that neither Trump nor Hegseth notified “Governor Newsom of their intent to federalize the California National Guard prior to issuing the June 7 Memo or the June 7 DOD Order…Governor Newsom said he only learned of the June 7 DoD Order from the Adjutant General after the Adjutant General received it.”
The Adjutant General relinquished command to the commander of U.S. Northern Command, and the commander, not the Governor, has issued all orders to the federalized National Guard, according to the Breyer opinion.
The National Guard troops arrived in Los Angeles on June 8, and that afternoon “protesters increased to about 3,500, particularly near the Metropolitan Detention Center, where the National Guard was deployed,” according to the Breyer opinion. The New York Times reported that the “aggressive federal response … in turn sparked new protests across the city.”
That day, Governor Newsom’s office wrote to Secretary Hegseth, stating that the June 7 DoD Order did not comply with the law and asserted the National Guard deployment represented “a serious breach of state sovereignty that seems intentionally designed to inflame the situation.”
The next day, again without consulting with Newsom, Defense Secretary Hegseth announced he had ordered the federalizing of an additional 2,000 California Guardsman for 60 days, and 700 active-duty Marines were being prepared for deployment to Los Angeles.
On June 10, Governor Newsom and the State of California brought a lawsuit against the President, the Secretary of Defense and the DoD, asking the Federal District Court to rein in the President’s use of military force in Los Angeles and to limit the military to guarding federal buildings and personnel and not participating in civilian or immigration law enforcement tasks.
Judge Breyer blocked Trump and Hegseth from using California’s National Guard at all.
Today’s Court of Appeals argument will focus on continuing to hold off Breyer’s temporary decision that the Trump federalized National Guard be returned to Newsom’s control, while appeals on it take place.
It is worth pointing out that in his original June 7 memo, President Trump did not specifically limit his directive to California’s National Guard, leaving open the possibility that it could serve as a precedent to federalize other state National Guards as well.
In a court filing, Delaware, Arizona, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Vermont, Wisconsin, Rhode Island, and the Office of the Governor of Kansas contend that they “are implicated by the unlimited scope of” the President’s June 7 Memo.
And that’s why there is a lot more involved in this case than most people realize.
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