A federal judge in San Francisco barred soldiers from aiding immigration arrests and other civilian law enforcement in Southern California Tuesday, warning of a growing “a national police force with the President as its chief” in an impassioned order set to take effect Sept. 12.
In a 52-page decision early Tuesday morning, Senior District Judge Charles R. Breyer barred the administration from “deploying, ordering, instructing, training, or using” California troops to engage in civilian law enforcement — a ruling that could have wide-ranging consequences for Trump’s use of the military nationally.
“Why is the National Guard still around?” Breyer demanded with evident irritation at trial last month.
“What is the threat today? What was the threat yesterday or two weeks ago that allowed it?” the judge said. “I’m trying to see whether there are any limits, any limits to the use of a federal force.”
The government called California’s suit a “Hail-Mary pass” and vowed to fight the decision.
The ruling comes as hundreds of troops now patrol the United States capital, following an order by the president in mid-August deploying the National Guard to tamp down crime in D.C.
Thousands more could soon be deployed to other American cities, the administration has warned.
About 300 soldiers remain on the streets of Los Angeles, where thousands of National Guard troops and hundreds of Marines were deployed in early June to quell fierce protest over immigration raids.
Breyer’s order would strictly limit what those remaining forces can do. The Department of Justice indicated it would immediately appeal the decision, all but ensuring a stay until the 9th Circuit can rule on it later this month.
Experts say the ensuing judicial dust-up it will clarify precedent in a murky corner of the law. But some warn it could also unearth a road map for future deployments in cities across the U.S.
“If Breyer sides with Newsom and the 9th Circuit sides with Trump, we now have a playbook to use the National Guard and maybe the military around the country,” said Mark P. Nevitt, a law professor at Emory University and one of the country’s foremost experts on the law at the heart of the case.
“He’d have a ruling from the most liberal circuit in America giving the legal go-ahead for this deployment,” Nevitt said. “That would make bad law for the country.”
It’s the second time this summer that Gov. Gavin Newsom risks expanding the presidential power he sought to curtail when he filed suit against Trump over the troop deployment in June.
On June 9, Breyer ruled to strip the president of command of federalized troops, saying he’d overstepped his authority under an obscure subsection of the U.S. Code. The 9th Circuit quickly reversed that decision, finding the president had broad discretion over domestic deployments.
“He’s using these shadow statutory mechanisms to get where he wants to go without making the hard political decision of invoking the Insurrection Act,” Nevitt said. “His lawyers are scrubbing the U.S. Code looking for executive power.”
Now, the appellate court must weigh whether the same broad presidential discretion extends to violations of the Posse Comitatus Act, a 19th Century statute that forbids soldiers from enforcing civilian laws in all but the most extreme circumstances.
The Department of Justice contends that once the president invokes his near-total authority to deploy them, almost anything soldiers might do to “protect” federal law enforcement is permitted under the act.
“Are you saying because the President says it, therefore it is?” Breyer said. “In other words, we’re going to see federal officers everywhere if the president determines there’s some threat to the safety of a federal agent.”
The argument veered at times into what Breyer called “Alice in Wonderland” logic: Justice Department lawyers said both that Los Angeles troops had stringently followed the law and that the law did not apply to them.
“Why did I spend a day looking at slide after slide and regulation after regulation and report after report on … compliance with the Posse Comitatus Act if the Posse Comitatus Act is irrelevant?” Breyer snapped. “Maybe you should tell your client that they don’t have to follow [it] if that’s your view.”
Likewise, administration attorneys told the court Trump can’t be sued for violating the criminal statute. But neither can he be prosecuted breaking it, they said, thanks to the Supreme Court’s presidential immunity decision last year.
“So there’s no remedy,” Breyer said.
Experts say the law is unclear.
“The legality of all of this is really messy,” Nevitt said. “Arguably California might not have standing to even get to the merits of the case.”
Others were more bullish on California’s chances.
“This is an opportunity to give more meaning to a statute that’s notoriously vague,” said Dan Maurer, a law professor at Ohio Northern University. “It’s important to see what can the president get away with.”
The trial also revealed stunning new details of some of the military’s most controversial actions in Southern California this summer, including their participation in a July raid of MacArthur Park that enraged residents and city officials.
On August 12, Major General Scott Marshall Sherman testified that Border Patrol agents had initially planned to target the park on Father’s Day — a decision the military overruled, saying the expected crowds made it too dangerous.
“It was going to be a very large amount of people in the park,” Sherman said. “I could not approve it because of the high risk.”
Sending soldiers into American cities has been one of Trump’s dreams since his first term as president, experts said. Some fear expanding the use of soldiers for civilian policing could be a first step toward martial law.
“The reason Trump might find that delightful is because that’s what Lincoln did,” said Eric J. Segall, a professor at Georgia State University College of Law. “Trump wants to be Lincoln.”
The president has already signaled his intention to expand the use of the military
“We’re going to look at New York. And if we need to, we’re going to do the same thing in Chicago,” Trump said during a press conference in August. “Hopefully, L.A. is watching.”
For Breyer, the threat is existential.
“What’s to prevent a national police force?” the judge said. “Is there any limit?”
