OPINION — “At the June 7, [2025] briefing, [Army North’s Contingency Command Post Deputy Chief of Staff] Mr. [William] Harrington acknowledged — primarily based on his expertise and coaching inside the Department of Defense — ‘if any National Guard troops had been federalized as a part of the deployment [to Los Angeles], they’d lose the flexibility to conduct regulation enforcement actions due to the Posse Comitatus Act.’…Among different directions, Task Force 51[the California National Guard contingent of] troops had been advised that they may not impede automobile or pedestrian visitors or block public roads, as a result of these are regulation enforcement capabilities.”
That is an excerpt from the 52-page opinion of United States District Judge 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 National Guard. The opinion instantly affected solely 300 California National Guard troops remaining on responsibility, from the 4,000 initially referred to as up.
On Wednesday, the Trump administration filed a discover to attraction the choice with the ninth U.S. Court of Appeals.
But Breyer’s opinion might have a nationwide influence if it survives appeals. That is as a result of Trump’s unique memorandum that referred to as the California National Guard into federal service by no means particularly talked about Los Angeles or California. To the opposite, as Breyer himself identified, “it instructed the Secretary of Defense ‘to coordinate with the Governors of the States and the National Guard Bureau in figuring out and ordering into Federal service the suitable members and items of the National Guard.’”
President Trump previously has threatened to name up National 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, “Do we go to Chicago? Do we go to a spot like New Orleans, the place we’ve an important [Republican] governor, Jeff Landry, who needs us to return in and straighten out a really good part of this nation that’s turn into fairly, you understand, fairly powerful, fairly dangerous.”
I’ll talk about beneath one other authorized difficulty concerned within the case, however first I need to have a look at the Posse Comitatus violations talked about above.
According to Breyer’s opinion, “Major General Scott Sherman, the deputy commanding normal help for U.S. Army North and commander of Task Force 51, oversaw the coaching of Task Force 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 the usage of pressure precisely as was written.’ Accordingly, he ensured that Task Force 51 troops knew that ‘they weren’t allowed to do any regulation enforcement actions. Law enforcement needed to do it themselves.’”
The Task Force 51 coaching slide proven Task Force 51 troops specified 12 regulation enforcement capabilities prohibited by the Posse Comitatus Act however, in line with Breyer’s presentation of the info, 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 way in which from the highest of [the Department of Defense] right down to Task Force 51,” in line with courtroom testimony.
Although the latter instruction was initially not put in writing, Defense 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 “Task Force 51…might take affordable measures to forestall the destruction or defacement of Federal Government property together with crowd management, short-term detention, cursory search (resembling 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 essential to guard the property,” in line with Breyer’s opinion.
Breyer additionally wrote that the June 23, Hegseth memo, in a second bullet level, asserted “that wherever federal personnel go, Task Force 51 troops can accompany them and set up perimeter management, interact in crowd management, and in any other case carry out any capabilities ‘essential 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 comply with authorized recommendation.
During a November 2024 interview with podcaster Shawn Ryan, Hegseth described that when he was an Army officer in Iraq in 2005, his platoon bought a briefing from a navy lawyer in Baghdad on the foundations of engagement. Hegseth mentioned the lawyer advised him and his troops that they may not shoot somebody carrying a rocket-propelled grenade except it was pointed at them.
Hegseth then advised Ryan, “I keep in mind strolling out of that briefing, pulling my platoon collectively and being like, ‘Guys, we’re not doing that. You know, like if you happen to see an enemy…interact 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 file is replete with proof that Task Force 51 executed home regulation in these prohibited methods. Task Force 51 arrange visitors blockades on roads at a residential enforcement operation in Long Beach, as a part of Operation Excalibur at MacArthur Park.”
Breyer mentioned, “Operation Excalibur concerned federal regulation enforcement officers marching throughout MacArthur Park whereas Task Force 51 remained stationed on the surface of the park in navy automobiles—Humvees and tactical automobiles—together with at two visitors management factors to forestall vehicular visitors alongside a stretch of Wilshire Boulevard.”
Breyer additionally identified, “Despite the chance 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 exhibiting by Defendants [Trump officials] that state and native officers had been unable or unwilling to execute the legal guidelines.”
Beyond the factual violations of the Posse Comitatus Act, in line with Breyer’s opinion, Trump officers argued that very same Act, which authorizes the federalization of National Guard items may very well be utilized “each time… the President is unable with the common forces to execute the legal guidelines of the United States.”
I ought to observe right here that the police energy is the quintessential energy that the Constitution reserves to the states. Local and state police are among the many “common forces to execute the legal guidelines” referred to above.
However, the Trump officers’ legal professionals argued, “The [Posse Comitatus] Act doesn’t even apply to the federalized National Guard,” as a result of the Constitution’s so-called “Take Care” clause beneath Article II, Section 3 states, “he [the President] shall take Care that the Laws be faithfully executed.”
Breyer, in his opinion, identified, “the Court [Breyer] is unaware of any particular person—authorities lawyer, navy or civilian official, courtroom, or commentator—who has made this argument apart 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 Executive 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 National Guard troops.”
“If the President needs to keep away from the Act’s restrictions,” Breyer mentioned, “he should invoke a legitimate exception…together with its requisite exhibiting 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 “are usually not required to withdraw the 300 National Guard troops at the moment stationed in Los Angeles, nor are they barred from utilizing troops in line with the Posse Comitatus Act…Thus, for instance, federal troops can proceed to guard federal property in a way in line with the Posse Comitatus Act.”
But Breyer ordered that the remaining Guard troops couldn’t interact in “arrests, apprehensions, searches, seizures, safety patrols, visitors management, crowd management, riot management, proof assortment, interrogation, or performing as informants, except 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 Court of Appeals. On Thursday, a ninth Circuit three-judge panel froze the state of affairs till it might have a courtroom 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 National Guard troops — the place a Trump try to broaden Presidential energy could also be headed to the Supreme Court.
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