OPINION — “On the June 7, [2025] briefing, [Army North’s Contingency Command Post Deputy Chief of Staff] Mr. [William] Harrington acknowledged — based mostly on his expertise and coaching throughout the Division of Protection — ‘if any Nationwide Guard troops had been federalized as a part of the deployment [to Los Angeles], they’d lose the power to conduct regulation enforcement actions due to the Posse Comitatus Act.’…Amongst different directions, Activity Power 51[the California National Guard contingent of] troops had been instructed that they may not impede car or pedestrian visitors or block public roads, as a result of these are regulation enforcement capabilities.”
That’s an excerpt from the 52-page opinion of United States District Decide Charles R. Breyer in a case introduced by California Governor Gavin Newsom, who objected to the Trump administration’s federalization of components of his state’s Nationwide Guard. The opinion immediately affected solely 300 California Nationwide Guard troops remaining on responsibility, from the 4,000 initially known as up.
On Wednesday, the Trump administration filed a discover to attraction the choice with the ninth U.S. Courtroom of Appeals.
However Breyer’s opinion might have a nationwide affect if it survives appeals. That’s as a result of Trump’s unique memorandum that known as the California Nationwide Guard into federal service by no means particularly talked about Los Angeles or California. On the contrary, as Breyer himself identified, “it instructed the Secretary of Protection ‘to coordinate with the Governors of the States and the Nationwide Guard Bureau in figuring out and ordering into Federal service the suitable members and models of the Nationwide Guard.’”
President Trump prior to now has threatened to name up Nationwide Guard troops in Illinois, Maryland and different states with excessive crime charges and Democratic governors, however after Breyer’s opinion, Trump could also be hesitating.
On Wednesday, throughout a gathering with Polish President Karol Nawrocki, Trump mentioned, “Will we go to Chicago? Will we go to a spot like New Orleans, the place we have now an amazing [Republican] governor, Jeff Landry, who desires us to return in and straighten out a really good part of this nation that’s turn out to be fairly, you recognize, fairly robust, fairly dangerous.”
I’ll focus on under one other authorized challenge concerned within the case, however first I wish to have a look at the Posse Comitatus violations talked about above.
In line with Breyer’s opinion, “Main Basic Scott Sherman, the deputy commanding normal help for U.S. Military North and commander of Activity Power 51, oversaw the coaching of Activity Power 51. He testified [during Breyer’s court hearing] that his quantity two precedence (after troops’ welfare and security) was ‘to make sure that they adopted the standing guidelines on using power precisely as was written.’ Accordingly, he ensured that Activity Power 51 troops knew that ‘they weren’t allowed to do any regulation enforcement actions. Regulation enforcement needed to do it themselves.’”
The Activity Power 51 coaching slide proven Activity Power 51 troops specified 12 regulation enforcement capabilities prohibited by the Posse Comitatus Act however, in keeping with Breyer’s presentation of the information, the troops “had been orally instructed that the 4 capabilities listed in crimson—safety patrols, visitors management, crowd management, and riot management—had been topic to a so-called constitutional exception to the Posse Comitatus Act.”
This latter oral instruction, Breyer wrote, got here “all the best way from the highest of [the Department of Defense] all the way down to Activity Power 51,” in keeping with court docket testimony.
Though the latter instruction was initially not put in writing, Protection Secretary Pete Hegseth did so in a memorandum issued June 23, [2025] that defined the scope of the alleged constitutional exception to the Posse Comitatus Act.
Hegseth’s memorandum directed that “Activity Power 51…might take cheap measures to forestall the destruction or defacement of Federal Authorities property together with crowd management, short-term detention, cursory search (corresponding to safety-related searches for weapons incident to short-term detention), measures to make sure the protection of individuals on the property, and the institution of safety perimeters fairly crucial to guard the property,” in keeping with Breyer’s opinion.
Breyer additionally wrote that the June 23, Hegseth memo, in a second bullet level, asserted “that wherever federal personnel go, Activity Power 51 troops can accompany them and set up perimeter management, have interaction in crowd management, and in any other case carry out any capabilities ‘crucial to make sure the execution of Federal capabilities and the protection of Federal personnel.’”
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The June 23 memo jogged my memory that this was not the primary time I had heard that Hegseth appeared to inform troops they didn’t should observe authorized recommendation.
Throughout a November 2024 interview with podcaster Shawn Ryan, Hegseth described that when he was an Military officer in Iraq in 2005, his platoon obtained a briefing from a army lawyer in Baghdad on the principles of engagement. Hegseth mentioned the lawyer instructed him and his troops that they may not shoot somebody carrying a rocket-propelled grenade until it was pointed at them.
Hegseth then instructed Ryan, “I keep in mind strolling out of that briefing, pulling my platoon collectively and being like, ‘Guys, we’re not doing that. You realize, like if you happen to see an enemy…have interaction earlier than he’s in a position to level his weapon at you and shoot, we’re going to have your again.’”
Breyer’s opinion additionally listed instances when he believed the California Guard violated Posse Comitatus saying, “The report is replete with proof that Activity Power 51 executed home regulation in these prohibited methods. Activity Power 51 arrange visitors blockades on roads at a residential enforcement operation in Lengthy Seashore, as a part of Operation Excalibur at MacArthur Park.”
Breyer mentioned, “Operation Excalibur concerned federal regulation enforcement officers marching throughout MacArthur Park whereas Activity Power 51 remained stationed on the skin of the park in army autos—Humvees and tactical autos—together with at two visitors management factors to forestall vehicular visitors alongside a stretch of Wilshire Boulevard.”
Breyer additionally identified, “Regardless of the danger related to Operation Excalibur and the quite a few rehearsals, DHS [the Department of Homeland Security which ran Operation Excalibur] deliberate to present LAPD [Los Angeles Police Department] solely two hours’ discover of the operation.” Breyer mentioned that illustrated Trump administration officers “lack of cooperation with their state and native counterparts [which] raises crimson flags,” and highlighted “the shortage of any displaying by Defendants [Trump officials] that state and native officers had been unable or unwilling to execute the legal guidelines.”
Past the factual violations of the Posse Comitatus Act, in keeping with Breyer’s opinion, Trump officers argued that very same Act, which authorizes the federalization of Nationwide Guard models might be utilized “each time… the President is unable with the common forces to execute the legal guidelines of america.”
I ought to be aware right here that the police energy is the quintessential energy that the Structure reserves to the states. Native and state police are among the many “common forces to execute the legal guidelines” referred to above.
Nonetheless, the Trump officers’ legal professionals argued, “The [Posse Comitatus] Act doesn’t even apply to the federalized Nationwide Guard,” as a result of the Structure’s so-called “Take Care” clause underneath Article II, Part 3 states, “he [the President] shall take Care that the Legal guidelines be faithfully executed.”
Breyer, in his opinion, identified, “the Courtroom [Breyer] is unaware of any individual—authorities lawyer, army or civilian official, court docket, or commentator—who has made this argument aside from Defendants’ [Trump officials’] legal professionals on this case.”
Breyer added that such an interpretation “would characterize a marked shift within the steadiness of energy between the Govt and the Legislature,” including it “would create a loophole within the Posse Comitatus Act that might swallow all the Act…[and] would place no significant guardrails on the federalization and use of Nationwide Guard troops.”
“If the President desires to keep away from the Act’s restrictions,” Breyer mentioned, “he should invoke a legitimate exception…together with its requisite displaying that state and native regulation enforcement are unable or unwilling to behave.”
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In concluding his opinion, Breyer wrote that Trump officers “should not required to withdraw the 300 Nationwide Guard troops presently stationed in Los Angeles, nor are they barred from utilizing troops according to the Posse Comitatus Act…Thus, for instance, federal troops can proceed to guard federal property in a way according to the Posse Comitatus Act.”
However Breyer ordered that the remaining Guard troops couldn’t have interaction in “arrests, apprehensions, searches, seizures, safety patrols, visitors management, crowd management, riot management, proof assortment, interrogation, or performing as informants, until and till Defendants fulfill the necessities of a legitimate constitutional or statutory exception, as outlined herein, to the Posse Comitatus Act.”
As famous above, Trump officers have appealed Breyer’s opinion to the ninth Circuit Courtroom of Appeals. On Thursday, a ninth Circuit three-judge panel froze the state of affairs till it might have a court docket session and listen to arguments in larger element.
This seems to be one other state of affairs – right here the President’s use of federalized Nationwide Guard troops — the place a Trump try and increase Presidential energy could also be headed to the Supreme Courtroom.
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