The Volokh Conspiracy
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Federal Court Rightly Invalidates Trump's Illegal Federalization of California National Guard Troops
Trump's policy here is yet another example of abusive invocation of emergency powers.
Earlier tonight, in Newsom v. Trump, Federal District Court Judge Charles Breyer issued a ruling against President Donald Trump's federalization of some 4000 California National Guard troops for the ostensible purpose of quelling violent protests against ICE deportations in Los Angeles. Judge Breyer's opinion strikes me as impressive and compelling, especially considering how quickly it was produced. The issue raised here is an important one, and part of a broader pattern of abuse of emergency powers by the Trump Administration.
As Judge Breyer explains, National Guard troops are normally under the control of their state governments, and can only be federalized in narrowly specified emergency circumstances. The statute Trump relied on to federalize California National Guard troops, 10 U.S.C. Section 12406, can only be used in one of the following situations:
1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States
There is obviously no "invasion" of LA by a foreign nation. Trump relies mainly on the claim that there is a "rebellion." Judge Breyer effectively rebuts it. Utilizing definitions from the period around 1903 (when this law was enacted), he conclude a "rebellion" must have 4 characteristics:
First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.
In addition to fitting contemporary understandings at the time of enactment, this definition has the virtue of ensuring that a "rebellion" is an unusual emergency situation, not an everyday occurrence. If "rebellion" is defined as any violent resistance to law enforcement, then rebellions are occurring in virtually every city virtually every day; for example, any time suspects forcibly resist arrest by police.
By this standard, events in LA obviously do not qualify as a "rebellion":
The protests in Los Angeles fall far short of "rebellion." Defendants refer repeatedly to "violent rioters," and "mobs," see, e.g., Opp. at 1, and so the Court pauses to state that there can be no debate that most protesters demonstrated peacefully. Nonetheless, it is also beyond debate that some individuals used the protests as an excuse for violence and destruction. Some bad actors on June 6 threw "concrete chunks, bottles of liquid, and other objects at … officers," Santacruz Decl. ¶ 11, and used "chairs, dumpsters, and other items as weapons," id. ¶ 14. Others threw rocks and other objects, including a Molotov cocktail, on June 7….
Violence is necessary for a rebellion, but it is not sufficient. 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…"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…..
While Defendants have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole. The definition of rebellion is unmet. Moreover, the 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…..
The Administration's advocacy of an ultra-broad definition of "rebellion" here is similar to its promotion of an ultra-broad definition of "invasion" to invoke the Alien Enemies Act and the Invasion Clause of the Constitution. Courts have uniformly rejected the view that illegal migration and drug smuggling qualify as an "invasion" (see overview of relevant precedent and original meaning in my recent Fifth Circuit amicus brief) and Judge Breyer was right to reject a similarly overbroad definition of "rebellion." Interestingly, he cites recent Alien Enemies Act decisions by various federal courts in support of his position. Both the AEA rulings and Breyer also rightly reject the notion that presidential determinations of whether an "invasion" or a "rebellion" exists are unreviewable political questions.
There are also parallels to Trump's claims, in the tariff cases, that the International Emergency Economic Powers Act of 1977 gives him unconstrained authority to declare anything he wants a "national emergency" and an "unusual and extraordinary threat," thereby authorizing him to start a massive trade war. Two federal courts have rightly rejected that position as well (including in a case where I am co-counsel for the plaintiffs).
Previous presidents have also tried to abuse emergency powers, including Joe Biden, with his attempt to exploit the Covid emergency to forgive over $400 billion in student loan debt (for those keeping score, I condemned it at the time, and praised the Supreme Court decision ruling against Biden). But Trump is distinctive for the enormous scale of his abuses and the magnitude of the threat they pose to civil liberties and the constitutional separation of powers.
Longtime readers may wonder whether my defense of Breyer's narrow definition of "rebellion" is consistent with my earlier arguments that the January 6, 2021 attack on the Capitol qualifies as an "insurrection" ("insurrection" and "rebellion" are synonyms). The answer is "yes"! In my article criticizing the Supreme Court's ruling in Trump v. Anderson, I specifically rejected a broad definition of "insurrection" encompassing any and all violent resistance to enforcement of federal laws. I instead advocated a narrower definition "that covers only violent attempts to illegally seize control of the powers
of government." By that definition, which is similar to Judge Breyer's definition of "rebellion," January 6 was clearly an "insurrection" (and also a "rebellion"), while current events in Los Angeles are not.
Judge Breyer also rightly rejects the notion that events in LA qualify as a situation where "the President is unable with the regular forces to execute the laws of the United States." He correctly concludes that this phrase refers to a largely complete breakdown of law enforcement, not merely a state of affairs where laws cannot be enforced fully. I would add that, like Trump's broad definitions of "invasion" and "rebellion," a broad definition of inability to "execute the laws" would lead to a perpetual state of emergency that exists at all times. In virtually every community, there are substantial numbers of people who get away with violating various federal laws, and the authorities are unable to catch most of them. For example, almost half of adult Americans have used marijuana at some point in their lives - in violation of federal criminal law - and the vast majority have never been caught or punished.
Judge Breyer also finds that Trump's federalization of the National Guard violated the Tenth Amendment, and the statutory requirement that federalization orders must be issued "through the governor of the respective State … from which State … such troops may be called." I won't go through the details here. But I think his analysis is compelling on these points, as well.
Much more can be said about this case and the important issues it raises. And I hope to do so in future writings.
The litigation over this issue will surely continue. An appellate court (the Ninth Circuit) has already issued an "administrative stay" briefly blocking implementation of Judge Breyer's ruling. The stay order outlines an accelerated briefing and hearing schedule.
I do not know how this litigation will turn out. But I hope that, as in the Alien Enemies Act cases, courts will reject the administration's bogus invocations of emergency powers. Judge Breyer's powerful opinion is an excellent start.
NOTE: Judge Breyer is the brother of retired Supreme Court Justice Stephen Breyer.
UPDATE: I should have noted Judge Breyer's important point that "the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention." This refers to the dynamic by which federal intervention here has actually exacerbated the very problems that supposedly justified it.
