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In Newsom v. Trump NO. 3:25-cv-04870-CRB (U.S. District Court for the Northern District of California) Filed 10 June 2025--Part I I considered the initial skirmish in the battle between Governor Newsom and President Trump, each in a sense representing a quite distinct vision of the nature and form of political organization and behaviors in the Republic. The focus was on the initial complaint filed by Governor Newsom against President Trump.
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Irony; but a reminder that jurisprudential tools have no ideological master--and that what was once a jurisprudential anathema can be resurrected and applied to undo what had earlier been done. Of course, that suggests a political element to constitutional jurisprudence; see here and here). All of this is on view in this litigation.
In response to the initial action filed by Governor Newsom, the Trump Administration filed their Opposition to Plaintiffs' Motion for a Temporary Restraining Order, a document of about 32 pages that may be accessed HERE. Its essential argument was this:
On the merits, Plaintiffs’ claims are baseless. The President properly invoked his statutory
authority to federalize the California National Guard under 10 U.S.C. § 12406. Plaintiffs admit that Los Angeles has experienced “unrest,” but ask this Court to second-guess the President’s judgment that federal reinforcements were necessary. That is precisely the type of sensitive judgment that is committed to the President’s discretion by law, and to which courts owe the highest deference. The statute empowers the President to determine what forces “he considers necessary” to “suppress” a “rebellion” or to “execute” federal “laws”—not the Governor, and not a federal court. 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.
Plaintiffs’ objection based on the Posse Comitatus Act is equally misdirected. Neither the
National Guard nor the Marines are engaged in law enforcement. Rather, they are protecting law enforcement, consistent with longstanding practice and the inherent protective power to provide for the safety of federal property and personnel. Plaintiffs offer no contrary evidence, only a speculative assertion that the National Guard and Marines will be used for unlawful purposes in the future. That speculation cannot justify the extraordinary remedy they seek. (Defendant's Opposition. p. 2).
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Particularly interesting was the invocation by President Trump's legal team of the imageries of Orvel Faubus and the segregationist take on states rights and the use of federal forces. "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." (Defendant's Opposition, p. 22).
The District Court was not impressed. The judge rejected thus framing in favor of another narrative, one that has been cultivated by the President's opponents (fair game in politics of course, especially in a Republic notorious for constructing narratives to suit contemporary politics, but that is also fair game). In this sense the Trump Administration's characterization of Governor Newsom's complaint as "crass political stunt endangering American lives”(Ibid., p. 1) was both a plausible characterization and irrelevant given the long history of such "stunts" that dotted the American judicial landscape, most notoriously perhaps, from President Truman's perspective (and the lives lost in consequence in order to serve the purity of our jurisprudence--a hard but defensible position), in the case that announced the current Supreme Court position on the standards for interpreting the limits of the power of the Executive and the management of separation of power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
The judge's perspective was made clear at the hearing:
The judge repeatedly emphasized that Trump is exercising presidential authority — not a king’s — and the role comes with limitations. “That’s the difference between a constitutional government and King George,” Breyer said. “It’s not that a leader can simply say something and then it becomes it. It’s a question of is a leader, a president or the governor, following the law as set forth in both the Constitution and statutes,” he continued. “That’s what a president, a governor or any leader must act under. Otherwise, they become something other than a constitutional officer.” (Judge invokes monarchy talk while mulling Trump’s National Guard deployment).
Judge Breyer's decision rejected the Trump Administration's position. In his Order Granting Plaintiffs' Application for Temporary Restraining Order . It concluded by rejecting the Administration's arguments, interpreting key terms (e.g., rebellion, and "through the Governor") against Defendants and concluding that the balance of equities favor the Governor:
Federal agents and property may actually well be served by de-militarization and a concurring de-escalation of the situation. Regardless, Plaintiffs and the citizens of Los Angeles face a greater harm from the continued unlawful militarization of their city, which not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members to fight fires, combat the fentanyl trade, and perform other critical functions. As discussed above, Defendants’ actions also threaten to chill legitimate First Amendment expression. Accordingly, the Court concludes that Plaintiffs have demonstrated that the balance of equities tips in their favor and that an injunction restraining the President’s use of military force in Los Angeles is in the public interest. (Order p. 35).
The order was stayed until 13 June.
In the meantime, the Trump Administration filed a 324 page appeal to the 9th Circuit (EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR STAY PENDING APPEAL. It consisted of 22 pages of argument and the record below.
A critical element among others in the Emergency Motion focused on the meaning of the ·through the governor" language and the extent to which it requires consent rather than notice. The arguments made by the Trump Administration in its Emergency Motion follow below.
That Emergency Motion was granted. "The Ninth Circuit Court of Appeals granted an emergency stay, temporarily suspending Breyer’s court order and allowing the federal government to maintain control of the California National Guard through at least June 17th." (Federal Judge Blocks Trump’s Seizure of California National Guard; see also HERE).
Stay tuned for Part 3.
Access
Part 4: Newsom v. Trump, No. 25-3727 D.C. No. 3:25-cv-04870-CRB (9th Cir, slip op. 19 June 2025)
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 FOR STAY PENDING APPEAL
PP 17-21
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invoked, regardless of how much execution of the laws remains thwarted or how
much personal danger federal personnel face during operations.
Finally, to the extent plaintiffs challenge the President's assessment of the
magnitude of the threat or the number of National Guard members it was appropriate
to deploy, those are not subjects for judicial second-guessing. Decisions related to the
control and deployment of militias are firmly entrusted to the political branches. See
U.S. Const. art. I, § 8, cl. 15 (granting Congress the "Power ... To provide for calling
forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions" (ellipsis in original), U.S. Const. art. § 2, cl. 1H, ("The President shall be
Commander in Chief ... of the Militia of the several States, when called into the
actual Service of the United States."). The statute at issue-Section 12406-a150
specifies that the President may call into service members of the National Guard "in
such numbers as he considers necessary" to quell the rebellion or execute the laws. 10
U.S.C. § 12406. When, as here, a statute "commits decisionmaking to the discretion
of the President, judicial review of the President's decision is not available." D4/ion W.
Spwter, 511 U.S. 462, 477 (1994), see 4/s0 Martin V. Mon; 25 U.S. 19 (12 Wheat.) 19
(1827) holding that a challenge to the legality of the President's decision to call out
the militia under a similar statute was beyond judicial scrutiny). The deployment
decision here also implicates immigration and national-security matters into which
courts will intrude only with the greatest reluctance. See Mat/9619; V. D24 426 U.S. 67,
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81 (1976) (immigration g E/-5/Qifa P/ww9. Indus. Co. W. United States, 607 F.3d 836, 842
(D.C. Cir. 2010) (en bane) (national security).
3. The district court similarly erred in concluding that the President failed to
comply with Section 12406'5 procedures. Section 12406 specifies that the President's
orders calling National Guard members into service "shall be issued through the
governors of the States." 10 U.S.C. § 12406. That procedural mechanism reflects the
dual control of the Guard and ensures that responsibility for the soldiers is clearly
transferred from state to federal control. See m/pm pp. 3-4.
The President and the Secretary of Defense satisfied this procedural
requirement. The President spoke with Governor Newsome about the situation in Los
Angeles on June 6. See capra n.2. The next day, the President signed the memorandum
federalizing National Guardsmen. See Presidential Memo, A250-51 The Secretary of
Defense then sent a memorandum to Ca]ifornia'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 Navyl,]" including "issu[ing1 all orders in Z/96 724/we cf!/96 Governor."
Cal. Mil. & Vet. Code § 163 (emphasis added). The memorandum bore the label
"THROUGH: THE GOVERNOR QF CALIFQRNIA." A249; see 4/so A253 (second
memorandum bearing same label). Contrary to the district court's conclusion, the
transmission of the order through the official who issues orders on behalf of
Governor was sufficient to satisfy Section 12406's requirement.
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Nothing in the statute supports plaintiffs' contention that the Governor needed
to issue the mobilization order himself. Section 12406 states that orders are issued
"through," not "by," governors. 10 U.S.C. § 12406. There is a fundamental
difference between orders being issued "by" a person (making them the
decisionrnaker) and orders being issued "through" that person (providing notice of
and making them a conduit for a decision already made). The latter structure better
aligns with the purpose of the procedural requirement-to effectuate the handover of
command and control of the National Guard members from the state military
commander to the federal military commander, thereby avoiding command confusion
during an emergency.
Plaintiffs are likewise incorrect to suggest that the President needed to obtain
the Governor's consent prior to federalizing National Guard members. When
Congress wants to require gubernatorial consent in National Guard matters, it says so
explicitly. See, sag., 10 U.S.C. § 12301(d) (members "may not be ordered to active duty
without the raven! of the governor or other appropriate authority of the State
concerned" (emphasis added)). Nor was the President required to consult with the
Governor about the prudence and specifics of the order. When a commander issues
an order "through" a subordinate, that is not an invitation for the subordinate to
debate whether the order should have been issued in the first place. And in any event,
the President did discuss the federalization with Governor Newsom. See capra n.2.
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4. The President's order is also consistent with the Tenth Amendment and the
Posse Comitatus Act. The President federalized National Guard members for the
express purpose of "temporarily protect[ing] ICE and odder United States
Government personnel who are performing Federal functions, including the
enforcement of Federal law, and to protect Federal property, at locations where
protests against these functions are occurring or are likely to occur." Presidential
Memo, A250. He did not authorize the National Guard members to prevent future
protests or to exercise "police power." Accordingly, federalized California National
Guard members have been protecting federal personnel, property, and functions at
designated locations by providing security patrols, observation posts, and outer
cordon security perimeter of buildings. A259-60 W 6-8.
Plaintiffs' Tenth Amendment and Posse Comitatus Act arguments thus fail.
The President indisputably has the authority to call forth the militia to protect federal
property, personnel, and prerogatives. See wpwz p. 11. The federal government does
not invade areas of state sovereignty simply because it exercises its authority in a
manner that impacts a state's police power. See HoNe/ W. Viigginin 84372156 Mining 89°
R66/4/marionI1552, 452 U.S. 264, 291 (1981).
It is similarly well established that when the President lawfully federalizes
National Guard members pursuant to statutory authority designed to authorize the
use of the militia to restore order, the Posse Comitatus Act does not apply. Although
the Act generally prohibits the use "of the Army, the Navy, the Marine Corps, the Air
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Force, or the Space Force as a posse comitatus or otherwise to execute the laws," that
prohibition does not apply in "cases and under circumstances expressly authorized by
the Constitution or Act of Congress." 18 U.S.C. § 1385. The Insurrection Act, which
was not invoked here, is one such exception. See Presieierefs Power to Use Feeierez/ Troops
to Xappress Resistauae to El 2r6e/fzeuf Federal Cow! Orders-Liz'z'/6 R05/é, /la/éausas, 41 OP.
Att'y Gen. 313 (Nov. 7, 1957). So too is the similarly worded Section 12406, which
the President invoked in issuing the challenged memorandum. The National Guard
may lawfully be used to suppress invasions and rebellions, and to protect the
execution of the laws where regular forces have failed to do so, without engaging in
activities the Posse Comitatus Act would otherwise prohibit.
The President's constitutional authority to protect federal personnel and
property is likewise unaffected by the Posse Comitatus Act. The Act "does not
impair the President's inherent authority to use troops for the protection of federal
property and federal functions." \5(/illiarn Rehnquist, Azzflyorigf to Use Troops to Prevent
D2z'e{7%ren6e Wir/9 Federal E/vip/cy/ees @ M949 Deffzonsfrafions and Conseqzzenf Iffzpairfffefzt of
G o verfwfefzt FWZMZUMJ, 1 OP. O.L.C. Supp. 343, 343 (1971). 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." M., see DO re N643/6, 135 U.S. at
65, DO re Dabs, 158 U.S. at 582.
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C. The other stay factors strongly favor the government.
1. The district court's injunction imposes significant harms on the federal
government and the public at large. It exposes federal employees to violence at the
hands of rioting mobs in Los Angeles and interferes with those employees' ability to
enforce federal law. As noted, National Guard members were deployed following
mob violence directed at federal officers and property, in which protestors threw
botdes, concrete chunks, and other objects at federal protective service officers
attempting to prevent a mob from breaching federal property, attacked federal
officers preparing for an immigration enforcement operation with rocks and
explosives and fought them for hours, trapped a federal enforcement officer in her
vehicle, which a mob pounded, shook, and violendy pummeled with stones, injured
numerous federal officers and agents by throwing projectiles, set multiple vehicles on
tire, and caused extensive damage to federal property. See so/pra pp. 5-7. And it
reaches even beyond the injunction sought by the plaintiffs, by enjoining National
Guard members from protecting federal properties from damage. The federal
government clearly has a compelling interest in preventing these extraordinary acts of
violence causing both personal injury and property damage-which local law-
enforcement and federal officials were unsuccessful in preventing. See Index
Newspapers LLC y. U.5. Mars/94/5 Sew., 977 F.3d 817, 838 (9th Cir. 2020).
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The government also suffers irreparable harm when its federal immigration
officials are prevented from safely and successfully enforcing the law by mobs of
protestors.
On the other side of the ledger, plaintiffs have not established irreparable injury
warranting extraordinary relief. Plaintiffs complain that the mobilization order was
not issued by the Governor or following consultation with him. But the federal
government's overriding interest in protecting national security far outweighs
plaintiffs' interest in vindicating asserted procedural rights. That follows directly from
Winter W. Naifzral Resolves Dej%v2se Cow vi/, Ina, 555 U.S. 7, 24 (2008), where the
plaintiffs claimed that the Navy failed to conduct studies before deploying an
antisubinarine force, but the Court held that the plaintiffs' interests were "plainly
outweigh[ed]" by the harm to the government in "jeopardiz [ing] the safety of the
fleet." Id. at 26.
Plaintiffs also claim there is a "very high risk of substantial civil unrest" due to
the "deployment of the military in a large, civilian population center." A46. That
theory of injury is inherency suspect, as it presumes that the widespread violence
occurring prior to the President's memorandum was caused by immigration
enforcement, but that going forward, it will be caused instead by the National Guard's
protection of federal employees in their enforcement of federal law. Nor does that
theory make sense given plaintiffs' concession that their desired injunction need not
bar the National Guard from "protecting federal immigration detention facilities and
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other federal buildings" or "defending federal officials or employees from threatened
physical harm at such buildings or real property." A201
2. Even if some form of injunctive relief had been warranted, it should have
been "tailored to redress the plaintiffs particular injury." Gil/ W. LW/9zlg1®rd, 585 U.S. 48,
73 (2018). As explained, plaintiffs' proposed injunction restricted only how National
Guard members could be deployed, limiting them to protecting federal property, and
federal personnel on such property, but not federal personnel outside federal
property. The district court, however, issued a broader injunction directing
defendants "to return control of the California National Guard to Governor
Newsom" and enjoining defendants from deploying National Guard members in Los
Angeles. A295.
Beyond those flaws, plaintiffs' claimed harm is from the deployment of the
National Guard to protect federal officers enforcing federal immigration law in Los
Angeles during the ongoing crisis, but the district court granted an injunction that
bars the Secretary of Defense and the Department of Defense "from deploying
members of the California National Guard in Los Angeles," A295, with no limitation
to the identity of the federal agency they are assisting or the nature of agency
operations. At a minimum, the injunction should be stayed insofar as it applies to
National Guard protection of federal agencies enforcing laws other than the
immigration laws.
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