Breyer

A federal judge ruled Tuesday that the Trump administration’s deployment of U.S. military troops to Los Angeles during immigration raids earlier this year was illegal.

U.S. District Judge Charles Breyer found the deployment violated the Posse Comitatus Act, which limited the use of the military for law enforcement purposes. He stayed his ruling to give the administration a chance to appeal.

“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into service in other cities across the country … thus creating a national police force with the President as its chief,” Breyer wrote.

The ruling could have implications beyond Los Angeles.

Trump, who sent roughly 5,000 Marines and National Guard troops to L.A. in June in a move that was opposed by California Gov. Gavin Newsom and L.A. Mayor Karen Bass, issued an executive order declaring a public safety emergency in D.C. The order invoked Section 740 of the District of Columbia Home Rule Act that places the Metropolitan Police Department under direct federal control.

In June, Breyer ruled that Trump broke the law when he mobilized thousands of California National Guard members against the state’s wishes.

In a 36-page decision, Breyer wrote that Trump’s actions “were illegal — both exceeding the scope of his statutory authority and violating the 10th Amendment to the United States Constitution.”

But the U.S. 9th Circuit Court of Appeals paused that court order, allowing the troops to remain in Los Angeles while the case plays out in federal court. The appellate court found the president had broad, though not “unreviewable,” authority to deploy the military in American cities.

In his Tuesday ruling Breyer added: “The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles. In short, Defendants violated the Posse Comitatus Act.”

This is intended as a personal appeal to a colleague and friend, Supreme Court nominee Stephen Breyer.

There are so many people who desperately need your understanding and compassion. The sad truth is that you are not only succeeding Harry Blackmun. You are the only potential successor to William Brennan, Thurgood Marshall, Earl Warren, William O. Douglas and the whole line of humanitarian justices who understood the importance of compassion and the need to do justice, not just administer law. There are lots of able technicians who understand law. The nation, however, is entitled to at least one justice with vision, with breadth, with idealism, with–to say the word despised in the Clinton Administration–a liberal philosophy and an expansive approach to jurisprudence. Someone must carry on the work of the court’s great progressive thinkers–the justices who ended de jure racial segregation, brought us one man/one vote, opened the courts to the poor and needy, established the right to counsel for all defendants, gave women true legal equality. It was progressive justices with a view of the Constitution as a living, breathing document who gave full measure to that instrument–not the legal technocrats, not those whose view of the Constitution was frozen as of 1789.

You have a wonderful opportunity and an awesome responsibility. You can be a narrow, cramped proceduralist like Felix Frankfurter, or you can seize the occasion and grow like a Warren, a Brennan, a Blackmun. You can be cold, purely intellectual and wholly technical, or you can become what the President said he was looking for–a justice who is compassionate, who has a big heart.

I hope you will re-examine your judicial philosophy. Everyone who goes on the court should. And when you emerge, I hope it will be to assume the mantle of the Brennan-Warren legacy. Otherwise, that voice will be silenced–perhaps permanently. How ironic if that would be the enduring consequence of electing a President supported so strongly by the poor, the needy, minorities of all kinds.

Anyway, I am most hopeful for the court and the country with you there. Perhaps I’m influenced by my personal feelings, but I believe that you will not let the spirit of liberalism be extinguished, that you will be a strong voice for a philosophy that now has no other means of expression. It simply cannot be otherwise–not after all that your spiritual predecessors have fought and struggled for, including the marvelous and caring justice for whom you clerked, Arthur Goldberg. You represent an awful lot of hopes, dreams and aspirations–a vision of a nation. For better or for worse, those who depend on the court to protect their fundamental rights must now look to you. You are their best and last hope.

As I listened to the minority leader of the Senate say, “He’s not as liberal as Blackmun,” and as I heard Sen. Orrin G. Hatch (R-Utah) express his joy over your selection, I thought of how important it is to have scruples and convictions and to stick by them. How I hope that those who disdain the expansive and humanitarian philosophy of the Warren / Brennan court have misread you.

Conservatives who fight for what they believe in deserve respect and admiration. It is hard to have those feelings for others who are easily intimidated, who fear controversy, who care only about compromise and consensus or their own success. There are plenty of centrists around.They now represent the left of the court. While I rarely agree with Chief Justice William H. Rehnquist, I respect him. When he was appointed to the court, he was a lone voice for a judicial philosophy of the right. He was regularly on the short end of 8-1 votes, but he spoke for an important point of view and he almost single-handedly kept alive the principles in which he believed. They now dominate our judicial thinking. I don’t expect you to be that successful, but at least give us a voice.

The court has lots of intellect. While you will add to it, Justice Antonin Scalia represents abstract rationality well enough. But soul is important too. That is what makes greatness.

Despite a stinging rebuke from a federal judge Thursday, military forces deployed in Los Angeles will remain under presidential control through the weekend, setting up a series of high-stakes showdowns.

On the streets of Los Angeles, protesters will continue to be met with platoons of armed soldiers. State and local officials remain in open conflict with the president. And in the courts, Trump administration lawyers are digging deep into case law in search of archaic statutes that can be cited to justify the ongoing federal crackdown — including constitutional maneuvers invented to enforce the Fugitive Slave Act of 1850.

Many legal scholars say the current battle over Los Angeles is a test case for powers the White House has long hoped to wield — not just squelching protest or big-footing blue state leaders, but stretching presidential authority to its legal limit.

“A lot rides on what happens this weekend,” said Christopher Mirasola, a professor at the University of Houston Law Center.

By staying the order that would have delivered control of most troops back to California leaders until after the weekend, the 9th Circuit Court of Appeals left the Trump administration in command of thousands of National Guard troops and hundreds of Marines ahead of the nationwide “No Kings” protests planned for Saturday.

The Trump administration claimed in court that it had the authority to deploy troops to L.A. due to protesters preventing ICE agents from arresting and deporting unauthorized immigrants — and because demonstrations downtown amounted to “rebellion against the authority of the Government of the United States.”

But U.S. District Court Judge Charles Breyer of San Francisco wrote Thursday that Trump had steamrolled state leaders when he federalized California’s troops and deployed them against protesters.

“His actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” Breyer wrote.

While ICE “was not able to detain as many people as Defendants believe it could have,” it was still able to uphold U.S. immigration law without the military’s help, Breyer ruled. A few belligerents among thousands of peaceful protesters did not make an insurrection, he added.

“The idea that protesters can so quickly cross the line between protected conduct and ‘rebellion against the authority of the Government of the United States’ is untenable and dangerous,” the judge wrote.

The 9th Circuit stayed Breyer’s ruling hours after he issued a temporary restraining order that would have allowed California leaders to withdraw the National Guard soldiers from L.A.

The pause will remain in effect until at least Tuesday when a three-judge panel — made up of two appointed by President Trump and one by former President Biden — will hear arguments over whether the troops can remain under federal direction.

The court battle has drawn on precedents that stretch back to the foundation of the country, offering starkly contrasting visions of federal authority and states’ rights.

The last time the president federalized the National Guard over the objections of a state governor was in 1965 when President Lyndon B. Johnson sent troops to protect Martin Luther King Jr. and the Selma to Montgomery March in defiance of then-Gov. George Wallace.

But sending troops in to assist ICE has less in common with Johnson’s move than it does with President Millard Fillmore’s actions a century earlier, Mirasola said. Beginning in 1850, the Houston law professor said, Fillmore sent troops to accompany federal marshals seeking to apprehend escaped slaves who had fled north.

Trump’s arguments to deploy the National Guard and Marines in support of federal immigration enforcement efforts rely on the same principle, drawn from the “take care” clause of Article II of the Constitution, Mirasola said. He noted that anger over the military’s repeated clashes with civilians helped stoke the flames that led to the Civil War.

“Much of the population actively opposed enforcement of the Fugitive Slave Act,” the professor said.

Some analysts believe Trump strategically chose immigration as the issue through which to advance his version of the so-called “unitary executive theory,” a legal doctrine that says the legislature has no power and the judiciary has no right to interfere with how the president wields control of the executive branch.

“It’s not a coincidence that we’re seeing immigration be the flash point,” said Ming Hsu Chen, a professor at the UCSF Law School. “Someone who wants to exert strong federal power over immigration would see L.A. as a highly symbolic place, a ground zero to show their authority.”

Chen, who heads the Race, Immigration, Citizenship, and Equality Program at UCSF Law, said it’s clear Trump and his advisers have a “vision of how ICE can be emboldened.”

“He’s putting that on steroids,” Chen said. “He’s folding together many different kinds of excesses of executive power as though they were the same thing.”

Some experts point out that Judge Breyer’s order is limited only to California, which means that until it’s fully litigated — a process that can drag on for weeks or months — the president may attempt similar moves elsewhere.

“The president could try the same thing in another jurisdiction,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at NYU’s Brennan Center for Justice.

“President Trump’s memorandum to deploy troops in Los Angeles made it very clear he thinks it’s appropriate … wherever protests are occurring,” Goitein said. “He certainly seems to think that even peaceful protests can be met with force.”

Experts said Breyer’s ruling set a high bar for what may be considered “rebellion” under the law, making it harder — if it is allowed to stand on appeal — for the administration to credibly claim one is afoot in L.A.

“It’s hard to imagine that whatever we see over the weekend is going to be an organized, armed attempt to overthrow the government,” Goitein said.

The Trump administration, meanwhile, hasn’t budged from its insistence that extreme measures are needed to restore order and protect federal agents as they go about their work.

“The rioters will not stop or slow ICE down from arresting criminal illegal aliens,” the Department of Homeland Security said in a news release this week, which included mugshots of several alleged criminals who had been arrested. “Murderers, pedophiles, and drug traffickers. These are the types of criminal illegal aliens that rioters are fighting to protect.”

Even after the 9th Circuit decision, the issue could still be headed to the Supreme Court. Some legal scholars fear Trump might defy the court if he keeps losing. Others say he may be content with the havoc wrought while doomed cases wend their way through the justice system.

“It’s a strange thing for me to say as a law professor that maybe the law doesn’t matter,” Chen said. “I don’t know that [Trump] particularly cares that he’s doing something illegal.”

Times staff writer Sandra McDonald contributed to this report.