from the judge-breyer-has-a-posse-comitatus-act dept
The normalization of authoritarianism is happening in real time in federal courtrooms. While district court judges try to apply actual legal standards to Trump’s near constant attempts to find ever more constitutional crises to create, appeals courts are busy treating the wholesale dismantling of constitutional constraints as just another political disagreement.
Take, for example, what’s happened in LA with Donald Trump calling in both the National Guard and the Marines.
Can Donald Trump (or, really, let’s face it: Stephen Miller) be allowed to totally manufacture a crisis in LA to push for violence to try to justify even greater violence on the American public? The courts seem to be figuring all this out in real time. We covered the initial ruling by district court judge Charles Breyer saying that Trump had clearly violated the law in federalizing the National Guard under the rationale he used, only to have the Ninth Circuit put his ruling on hold to review.
Late last week, two things happened regarding the case. First, the Ninth Circuit issued a per curiam (i.e., unsigned) opinion overturning Breyer’s decision, which had ordered the National Guard be put back under the control of Governor Newsom.
Breyer’s original analysis was straightforward: Trump’s invocation of 10 U.S.C. § 12406(3) failed because (1) there was no evidence of the “rebellion” the statute requires, and (2) Trump bypassed the procedural requirement to work “through” the governor. These weren’t close calls—they were clear violations of statutory requirements.
But the Ninth Circuit panel decided that none of that matters. In a ruling that epitomizes how appeals courts are enabling authoritarianism through procedural deference, they rejected Breyer’s analysis almost entirely:
Affording the President that deference, we conclude that it is likely that the President lawfully exercised his statutory authority under § 12406(3), which authorizes federalization of the National Guard when “the President is unable with the regular forces to execute the laws of the United States.” Additionally, the Secretary of Defense’s transmittal of the order to the Adjutant General of the California National Guard—who is authorized under California law to “issue all orders in the name of the Governor,” CAL. MIL. & VET. CODE § 163— likely satisfied the statute’s procedural requirement that federalization orders be issued “through” the Governor. And even if there were a procedural violation, that would not justify the scope of relief provided by the district court’s TRO.
Notice what’s happening here. The panel doesn’t actually address whether there was a “rebellion”—they just defer to presidential authority. They don’t analyze whether Trump actually worked “through” Governor Newsom—they manufacture a procedural workaround through the Adjutant General. And then they dismiss even potential procedural violations as insufficient grounds for relief.
This is how constitutional constraints get dissolved: not through dramatic confrontations, but through judicial acquiescence wrapped in the language of deference and procedure.
The panel’s own jurisdictional gymnastics reveal the game being played. They acknowledge that appeals courts generally can’t review TROs, but then do it anyway because… reasons. Procedural constraints apparently only apply when they protect executive power, not when they limit it.
Notably, that ruling says that because the lower court had not ruled on California’s claim that Trump’s actions violated the Posse Comitatus Act, that issue was not before the appeals court.
Which brings us back to Judge Breyer’s courtroom, where on Friday he held a hearing specifically exploring whether or not Trump’s action violated that law:
U.S. District Judge Charles Breyer put off issuing any additional rulings and instead asked for briefings from both sides by noon Monday on whether the Posse Comitatus Act, which prohibits troops from conducting civilian law enforcement on U.S. soil, is being violated in Los Angeles.
So we’re left with this: a district judge trying to apply actual legal standards to military deployment against American civilians, while an appeals court essentially rubber-stamps executive power grabs as long as they’re dressed up in statutory language.
The Posse Comitatus analysis gives Breyer another opportunity to impose legal constraints on what is, fundamentally, a manufactured crisis designed to justify military rule. But given the Ninth Circuit’s track record here, the more important question isn’t whether Breyer will do the right thing again—it’s whether the appeals court will let him.
Filed Under: california, charles breyer, donald trump, gavin newsom, marines, national guard, posse comitatus
