from the not-how-it-works-donnie dept
When a federal judge grants a temporary restraining order within hours of a hearing and writes 36 pages explaining why the President of the United States is acting illegally and unconstitutionally, you know something significant just happened. Federal Judge Charles Breyer did exactly that last night, blocking Donald Trump’s deployment of the National Guard to Los Angeles and exposing the administration’s manufactured crisis for what it is: an illegal attempt to crush dissent under the guise of emergency powers.
Of course, just hours later, the Ninth Circuit put a stay on the ruling so it can consider the government’s appeal early next week. But Breyer’s ruling is important and thorough, so let’s cover what he ruled before talking about the Ninth Circuit.
The sequence of events reveals the administration’s strategy in stark relief. After Stephen Miller orchestrated aggressive ICE raids targeting people at Home Depot parking lots, protests naturally followed. Trump and his team then deliberately mischaracterized these protests as violent riots, deployed 4,000 National Guard troops and Marines to escalate tensions, and used the predictable friction to justify further military intervention. It’s a textbook authoritarian play: create the crisis, then use it as pretext for crushing dissent—all to the cheering applause of a bunch of chuckleheads on Fox News and ExTwitter.
California quickly sued over the National Guard deployment, because any such deployment is supposed to go through California’s governor, not the President, and sought a temporary restraining order. It sought to have the TRO issued before the federal government could reply, but Judge Breyer made them wait until the DOJ filed a response and both sides appeared before him for a hearing Thursday afternoon. It seems likely that he used some of that time to draft a possible order, because less than four hours after the hearing concluded, he issued a very thorough and detailed 36-page order granting the TRO and giving control of the National Guard back to California governor Gavin Newsom.
Plaintiffs have shown a likelihood of prevailing in their argument President Trump’s invocation of § 12406 was in fact not lawful, both exceeding the scope of his authority and violating the Tenth Amendment
The judge doesn’t shy away from the fact that there was some violent activity by protesters — in fact, he describes multiple examples of it — but notes that this is far from enough to justify the deployment under both the law and the Constitution.
The protests in Los Angeles fall far short of “rebellion.” Defendants refer repeatedly to “violent rioters,” and “mobs,” see, e.g., Opp. at 1, and so the Court pauses to state that there can be no debate that most protesters demonstrated peacefully. Nonetheless, it is also beyond debate that some individuals used the protests as an excuse for violence and destruction. Some bad actors on June 6 threw “concrete chunks, bottles of liquid, and other objects at … officers,” Santacruz Decl. ¶ 11, and used “chairs, dumpsters, and other items as weapons,” id. ¶ 14. Others threw rocks and other objects, including a Molotov cocktail, on June 7. Olmstead Decl. ¶ 9. A “violent crowd” boxed in officers, threw fireworks, rocks, and mangos, and trapped one officer in her car, surrounding it, shaking it, and throwing stones at it. Santacruz Decl. Ex. 20. Some people on June 8 set off fireworks toward officers and threw objects at their vehicles. Santacruz Decl. ¶ 26. Someone on June 9 fired paintballs, id. ¶ 28, and a crowd injured five LAPD officers, id. ¶ 31.
Violence is necessary for a rebellion, but it is not sufficient. Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are “armed” in a 1903 sense—the Court is aware of no evidence in the record of actual firearms—there is little evidence of whether the violent protesters’ actions were “open or avowed.” Some presumably engaged violently with officers at close quarters in the daylight, while many others threw items under cover of darkness, protected by a crowd, identities concealed. Certainly, the peaceful protesters were “organized” to some degree, in that people knew generally knew where to go to participate in protests, see, e.g., Espíritu Decl. Ex. F (“Dozens of protesters gathered Friday evening outside a federal detention center in Los Angeles where lawyers said those arrested had been taken, chanting ‘set them free, let them stay!’”), but there is no evidence of organized, as apart from sporadic or impromptu, violence.8 Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole; the evidence is overwhelming that protesters gathered to protest a single issue—the immigration raids.
While Defendants have pointed to several instances of violence, they have not identified a violent, armed, organized, open and avowed uprising against the government as a whole. The definition of rebellion is unmet.
Furthermore, the Court notes that calling marginal violence at a protest a “rebellion” would make a total mockery of the First Amendment:
Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion. The U.S. Reports are chock-full of language explaining the importance of individuals’ right to speak out against the government—even when doing so is uncomfortable, even when doing so is provocative, even when doing so causes inconvenience. See, e.g., Cohen v. California, 403 U.S. 15, 24–25 (1972) (“To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. … That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (“But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. … Any word spoken … that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.”); Cox v. Louisiana, 379 U.S. 536, 550–51 (rejecting the argument that a conviction for breach of the peace “should be sustained because of fear expressed by some [onlookers] that ‘violence was about to erupt’ because of the demonstration” and explaining “that constitutional rights may not be denied simply because of hostility to their assertion or exercise” (quoting Watson v. City of Memphis, 373 U.S. 526, 535 (1963))); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 574 (1995) (“[T]he point of all speech protection [] is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”).
And, the judge points out: “courts have repeatedly reaffirmed that peaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment.”
Even more to the point:
In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone. 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.
Again, Judge Breyer is seeing what everyone other than the most brainwashed diehard MAGA fan can see: all of this is manufactured nonsense. Yes, there was some violence in response to aggressive posturing by law enforcement and federal forces. But that’s always going to happen at protests. Indeed, it’s what Trump, Miller, Noem, Hegseth, and that whole crew were banking on.
But, because they’re so transparently obvious about what they’re doing, the Judge sees that they’re clearly violating the law in punishing people for their First Amendment protected speech.
The DOJ also argued that the protests get in the way of his ability “to execute the laws of the United States” as a justification for bringing in the National Guard. And again, Breyer points out that none of us were born yesterday.
Defendants argue that they satisfy this condition because the Los Angeles protests threatened the safety of federal law enforcement personnel and interfered with the sites where ICE agents were enforcing alien removal laws. Opp. at 16. Defendants concede that ICE succeeded in arresting 44 people on June 6, but insist that “that limited success came with the risk of danger,” and that, had the protests not interfered with their operations, ICE “would have been able to carry out additional execution-of-the-laws activity.”
Whether ICE could have detained more people in the absence of the protests is mere conjecture—Defendants provide no support for that assertion. Even assuming that Defendants are correct, however, the statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs. The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here.
The DOJ also tried to Michael Scott their way around the requirement that they mobilize the National Guard “through” Governor Newsom by just declaring it so.
Judge Breyer finds this particularly stupid:
Section 12406 maintains this requirement: “Orders for these purposes shall be issued through the governors of the States … .”
[….]
Defendants assert that they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” Opp. at 17. True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders “shall be issued through the governors.”
Of course, so far we’ve mostly focused on the laws at play here. But what about the Constitution? Yup, turns out Trump appears to be violating that as well, namely the Tenth Amendment which delegates all additional powers to the state… including policing.
It is well-established that the police power is one of the quintessential powers reserved to the states by the Tenth Amendment….
Although Defendants identify some stray violent incidents relating to the protests against ICE raids in Los Angeles, and from there boldly claim that state and local officials were “unable to bring rioters under control,” Opp. at 19–20, it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws. Quite the contrary, the Founders reserved that power, and others, to the states in the Tenth Amendment
Furthermore, the Court notes that by federalizing the National Guard (even if there was an actual issue in LA — and again, there is not) Trump has also taken those 4,000 National Guard members away from Newsom, limiting his ability to deploy them elsewhere, should the need arise:
But with respect to the Tenth Amendment claim, that is not the only consideration at play; there is also the fact that the federalization of 4,000 members of California’s National Guard necessarily prevents Governor Newsom, as the commander-in-chief of his state’s National Guard, from deploying them as needed. Had Defendants complied with the substantive and procedural requirements of § 12406, the federal interests reflected by that statute may well override Governor Newsom’s interest in retaining his National Guard members. But they did not. So whether or not the National Guard is exercising illegitimate federal police power in Los Angeles, the unlawful federalization of those members has interfered with the state’s legitimate police power, and thus it violates the Tenth Amendment.
Finally, Judge Breyer makes it clear he understands the manufactured nature of the crisis and how it’s designed to increase violence by pointing out that the TRO makes sense because it seems much more likely to decrease the violence by removing the National Guard, whose presence is only likely to fan the flames higher.
As for Plaintiffs’ first asserted harm, they have established that the continued presence of National Guard members and Marines in Los Angeles risks worsening, not improving, tensions on the ground… Indeed, local law enforcement arrests jumped after the National Guard was deployed…. Defendants reiterate that civil unrest began before President Trump nationalized the National Guard, Opp. at 26, but that does not address Plaintiffs’ point that military presence in a civilian population center will worsen—and has worsened—the situation. And contrary to Defendants’ assertion, Plaintiffs have provided evidence backing up their concern, so it is not merely “hypothetical or possible.”
In fact, it is common sense that President Trump and Secretary Hegseth’s unilateral exercise of federal power risks doing more harm than good.
Or, even more to the point:
To put a finer point on it, the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention.
Hilariously, Judge Breyer also turns Trump’s statements on the “fentanyl crisis” back around on the federal government here, by pointing out that the National Guard has been helping to fight drug trafficking, and this has taken them away from that work, citing Trump himself calling fentanyl trafficking a “national emergency” and a “public health crisis.”
The end result is clear:
• Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles.
• Defendants are DIRECTED to return control of the California National Guard to Governor Newsom.
The order is set to take effect at noon today. The court also set a pretty expedited briefing schedule regarding turning this temporary restraining order into a preliminary injunction.
This ruling represents more than just another legal loss for the Trump administration—it’s a judicial recognition that we’re dealing with a government that manufactures crises to justify authoritarian overreach. Judge Breyer’s swift action and detailed constitutional analysis show that even judges normally inclined to defer to executive power can see through such transparent bad faith.
What makes this particularly significant is how it exposes the administration’s broader strategy: create fake emergencies, escalate tensions through military deployment, then use the resulting chaos to justify further erosion of civil liberties. It’s a playbook that depends on judicial and public acquiescence to obvious constitutional violations.
Judge Breyer’s ruling proves that when courts actually examine these manufactured crises closely, they fall apart under legal (and common sense) scrutiny. The administration’s authoritarian moves are so over-the-top that they’re making it easier for judges to recognize them as what they are: illegal attempts to crush dissent disguised as emergency response.
The real test will be whether other federal judges, including those at the Ninth Circuit, follow Breyer’s lead in refusing to enable this constitutional destruction, or whether they’ll continue to give deference to an administration that has proven it operates entirely in bad faith.
In theory, appeals courts aren’t supposed to be reviewing temporary restraining orders, and rather wait until the case is further along, but we no longer live in normal times, and the DOJ has been appealing TROs like this one and the appeals courts have been willing to consider them. While frustrating, I wouldn’t read too much into the stay just yet, given that the Court has set a pretty quick timeline, and it’s not unusual for an appeals court to put a lower court ruling on hold while it considers things. Perhaps more worrisome is that the panel reviewing this case has two Trump-appointed judges. Hopefully even they can see through the pretense of Trump’s positioning here.
Filed Under: 10th amendment, 1st amendment, california, charles breyer, donald trump, gavin newsom, los angeles, national guard, protests, states rights
