The latest test of President Donald Trump’s powers starts next week in California.
That’s when a federal judge will weigh whether the Trump administration violated a nearly 150-year-old law when it deployed thousands of National Guard and 700 active-duty Marines to Los Angeles this summer against the wishes of the state’s governor and the city’s mayor.
The bench trial will begin Monday in California, where Senior U.S. District Judge Charles Breyer will be asked to decide whether Trump had overstepped the Posse Comitatus Act of 1878, which forbids the U.S. military from acting as a domestic law enforcement arm except under the most extraordinary circumstances. The judge is also expected to hear arguments from both sides about the definition of a “rebellion.”
The stakes in the case are high, and not just for California: It will test the lengths to which Trump — or any future president — can use military force to quash unrest or sidestep local officials, as well as how they could plan to handle demonstrations or other crises in a given state.
The suit was brought by California Gov. Gavin Newsom and the state’s attorney general, Rob Bonta, who called the administration’s actions “an unmistakable step toward authoritarianism.”
Trump, the governor argued in his lawsuit, did not have the constitutional authority to send in troops or take over the state’s National Guard without his express consent. The administration had “manufactured [a] crisis,” the governor said in a June 9 statement.
“This is him intentionally causing chaos, terrorizing communities and endangering the principles of our great democracy,” Newsom said.
The case stems from Trump’s deployment of troops to respond to protests against immigration raids carried out in downtown Los Angeles’ Fashion District in June.
Protesters unsuccessfully attempted to stop those raids, with demonstrators gathering outside of a federal courthouse the night of June 6. Skirmishes broke out between protesters and police, and the courthouse was vandalized. Local police declared an unlawful assembly, and as rumors of more raids spread, other demonstrations cropped up, including one where a car was set on fire. The next evening, June 7, Trump issued a memo authorizing the deployment of 2,000 California National Guard troops for up to 60 days, ostensibly to respond to riots.
“If Governor Gavin Newscum, of California, and Mayor Karen Bass, of Los Angeles, can’t do their jobs, which everyone knows they can’t, then the Federal Government will step in and solve the problem, RIOTS & LOOTERS, the way it should be solved!!!” Trump wrote on social media the same day.
It was the first time in over 50 years that the federal government opted to haul in the National Guard without a governor’s approval, which is usually required: Neither Newsom nor Bass had made the request. In fact, both vocally opposed it.
Newsom slammed it as little more than an opportunity for Trump to escalate tensions between law enforcement and protesters and manufacture a crisis.
“This brazen abuse of power by a sitting President inflamed a combustible situation … putting our people, our officers, and the National Guard at risk. That’s when the downward spiral began,” Newsom said in a statement, calling the deployment “dangerous” as well.
Just days after the initial deployment, the chief spokesman for the Pentagon Sean Parnell announced the Defense Department would mobilize another 2,000 California National Guard troops to support ICE and “enable federal law enforcement to safely conduct their duties.” The Marines were also deployed.
As California officials publicly decried the administration’s conduct, Trump suggested they should be arrested: Newsom, Bass and any other “officials who stand in the way of law and order, yea, they will face judges,” Trump said on June 8.
The Posse Comitatus Act was passed, as the Brennan Center for Justice noted in its study this year, after the end of the Reconstruction Era and as white supremacists were ascending to power in Southern states as well as in Congress. The idea for the act wasn’t noble: Congress wanted to ensure that the military would not be able to step on the toes of states that were trying to keep Jim Crow laws in place even after the Confederacy had fallen.
According to a report from the Congressional Research Service on the law, the act “outlaws the willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an act of Congress.” There are, however, questions over the act’s “context of assistance to civilian police.”
“At least, in this context, the courts have held that, absent a recognized exception, the Posse Comitatus Act is violated when (1) civilian law enforcement officials make ‘direct active use’ of military investigators; or (2) the use of the military ‘pervades the activities’ of civilian officials; or (3) the military is used so as to subject ‘citizens to the exercise of military power which was regulatory, prescriptive or compulsory in nature,’” the report reads. “The act is not violated when the Armed Forces conduct activities for a military purpose.”
Under posse comitatus, the National Guard is only able to support other federal law enforcement officers or conduct enforcement on federal property. They are not allowed to assist local law enforcement in performing their local duties.
The statute also declares that these deployment orders “shall be issued through the governors of the states” — a pretty big point for Newsom, who, again, openly disavowed the deployment. It is unclear if that point will stick, however, since the language of the statute does not explicitly state that consent must first be granted.
However, Trump invoked an obscure federal code, Section 12406, which states that whenever the U.S. is “invaded or is in danger of a foreign nation” or if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” if it cannot be resolved through regular means then the president may “call into Federal service” members of the National Guard of any state in any numbers he sees fit.
Newsom and Bonta argue that Trump’s invocation of Section 12406 was illegal because it didn’t expand those limits, and further, that there was no actual “rebellion” to quell.
In court records, lawyers for the Trump administration have argued that protests against ICE amounted to a rebellion in California. Breyer will likely preside over an intense debate over the legal definition of the word “rebellion” since there is no agreed-upon legal definition of it. U.S. code does lump rebellion in with “insurrection,” however, and it is generally understood as an organized uprising against established laws.
The bench trial will last just three days, through Aug. 13.
Up to this point, success for California’s suit on the issue has been a mixed bag. Judge Breyer first sided with Newsom when he agreed on June 12 to issue a temporary restraining order that would block Trump from commandeering the California National Guard. But within days, an appellate court halted Breyer’s order and sided with Trump. On June 19, Judges on the Ninth Circuit Court of Appeals ruled unanimously that Trump could retain control and found it was likely that he exercised his authority as president lawfully.
The appellate court said that since protesters had damaged federal buildings, caused at least one federal building to be closed and vandalized a federal van, the interest of the government to prevent those incidents from happening again was “significant,” the judges wrote. And, in another helpful decision for Trump, the court also found that even if Newsom wasn’t notified that the National Guard in his state was being federalized, as governor, he lacked any power to veto Trump.
A drawdown of the troops in Los Angeles got underway at the end of last month, just a week shy of the 60-day deadline laid out in Trump’s memo. Lawyers for the Trump administration emphasized in court records, however, that had Defense Secretary Pete Hegseth wanted to extend that deadline, he had the right to do so based on the “situation on the ground.”
A Pentagon spokesperson said there are still 300 National Guard troops left in Los Angeles.