In the fog of jurisdictional war, the legal battle between Donald Trump & Gavin Newsom over troops on the ground the streets in Los Angeles took a judicial pause today
Just hours after an Appeals Court shut down the California Governor’s attempt to obtain a temporary restraining order on POTUS’ control of National Guard troops, Newsom has seen hopes of a quick work around dashed by a federal judge.
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“Now it is not clear to me that the 9th Circuit stay of the TRO divests this court of its usual authority pursuant to Federal Rules of Civil Procedure …to grant or modify an injunction as to the Posse Comitatus Act following its refusal to grant one,” Judge Charles Breyer told lawyers Eric Hamilton for Trump and Jane Reilley for Newsom this morning in a hearing in San Francisco. “Of course, this court recognizes that the 9th Circuit has the authority to modify, restore or grant an injunction while the appeal is pending, Federal Rules of Civil Procedure …so that I can be sure that I’m operating within my jurisdiction, I would like the parties to submit briefs by noon on Monday, June 23 2025 addressing whether this court or the Ninth Circuit retains primary jurisdiction to modify or grant an injunction under the Posse Comitatus Act,” the clearly not pleased Bill Clinton appointee added.
Under a very targeted reading of an obscure statute, Trump moved to federalize the Golden State National Guard on June 7 without Newsom’s consent in response to protests over a flood of ICE raids in and around LA on June 6. Since then the parties have traded insults over social media and mainstream media, as well as been in and out of court as citizens have taken to the streets, federal buildings have become make-shift detention centers for immigrants hauled in by masked and often no warrant producing agents, and a curfew was placed on DTLA for over a week.
Adding a further wrinkle in what has been by any measure a proceeding draining its relevance by the day as tensions in LA over the troops’ downtown presence lessen even as ICE raid intensify, Judge Breyer left the next move a hanging chad of sorts.
“Depending on what you say, because I’m actually interested in what authority I have, I’ll decide what to do next,” he said to the DOJ and state attorneys, who were both obviously ready to argue their respective POV on a preliminary injunction in the Trump/Newsom tug-o-war.
“Maybe I’ll have a hearing, maybe I won’t, I don’t know,” Judge Breyer said. I don’t know, that’s what you’re going to tell me. You’re going to tell me what to do. My guess is you might disagree, but nevertheless, I invite you to address that issue.”
While the Judge one again pushed a decision on this matter down the line, as he did earlier this month when the state first moved for an emergency TRO, Breyer did indicate in no small measure where he was coming from Friday.
Before telling the lawyers and their high-powered clients how her want to proceed, Judge Breyer spoke about the unanimous order released last night from the trio of appeals court judges (two trump appointees, and one Joe Biden appointee). In particular, he centered on one area of the 38-page order that may, just may, provide some wiggle-room, or interpretation, as courts love to say.
“In opposing the stay, Plaintiffs do not press their claims based on the Posse Comitatus Act or the APA,” Judge Breyer read out from page 13 of Thursday’s 9th Circuit order. “Consequently, the parties’ disputes about how federal forces are being deployed are not before us.”
That last sentence being the potential magic bullet, literally and figuratively, for Newsom in taking charge again of the state’s troops.
BTW, if you missed that particular episode of Schoolhouse Rock, the Posse Comitatus Act is 1812 passed law that pretty much blocks the use of the US military, including the National Guard when they are under federal control, from being deployed domestically as a police force. Of course, like so many laws from centuries ago and even last week, the PCA has vague areas and loopholes. For one, Congress can simply vote in a specific deployment. Another exception is the invoking of the Insurrection Act by the President, or perhaps conditions close to but not exactly at the rebellion standard of the Insurrection Act.
Findings by Breyer, based on the briefs, could put the PCA under such scrutiny as to permit an injunction in fact or in name,. In reaction and escalation of a different sort in a nation combating several constitutional crisis’ a day at this point, that could also see the conflict loving Trump administration kick it all upstairs to the Supreme Court as they have threatened to do before if things didn’t go their way.
Despite what local law enforcement and the likes of the Mayor and Newsom have very loudly said, the White House has justified its actions by claiming things had spiraled out of control in LA with the response to the ICE raids of June 6, and the feds had to step in fast.
It will be interesting to see how this is addressed in the forthcoming briefs from the lawyers on both sides,. It will also be interesting, if that’s the word, to see if Vice President JD Vance will bloviate on the matter during his dine and dash visit to LA that was hastily announced this morning, likely in response to the 9th Circuit ruling of last night.
Add to that, what Newsom and the state Attorney General’s office lawyer Reilley said to the court after Judge Breyer made his desire for further briefs known. In addition to the Posse Comitatus Act issue regarding whether or how federalized troops have been engaging in civil law enforcement,” she noted, because of the discretionary power here of Defense Secretary and defendant Pete Hegseth. “We would also want the court to address the duration of the order and the parameters for when the order should conclude.”
As it is, 4,000 National Guard troops are in and around LA, mainly guarding federal buildings, as are about 700 U.S. Marines. Even with the ICE protests, the No Kings demonstrations of June 14 and similar actions planned, the Marines deployment is not a part of the back-and-forth between Trump and Newsom, at least not yet.
FYI – to be clear, sadly there never was an episode of Schoolhouse Rock about the Posse Comitatus Act, but admit it, it’s not a bad idea at all.
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