Judge Blocks Trump Troops in L.A.… Get Out Now!!!
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Well, we got the breaking news we were looking for. Judge Breyer in San Francisco has issued a temporary restraining order against the Trump administration, putting the governor of California, Governor Newsom, back in charge of the state National Guard, finding that it was more likely than not at this juncture that the Trump administration has violated

a particular congressional statute about when they can and cannot commandeer the State Guard, also violated the 10th Amendment of the Constitution in not respecting state sovereignty, and has decided to put California back in charge. It's a win for California. Rob Bonta, the Attorney General, the Governor, Governor Newsom, and everyone else. Let me read to you from the order. I'm here on Midas Dutch. I'm Michael Popock.

And let's get to the breakdown on our legal AF hot take here. This is how the judge started it, and then I'll tell you how he ended it. Then I'll fill in the middle and connect the dots. It says, on June 6th, the federal government initiated immigration raids across the city of Los Angeles, Judge Breyer writes. Protests swiftly followed, and some individuals involved were unruly and even violent.

State and local law enforcement responded. The following day, President Trump ordered the members of the California National Guard to be federalized and assume control of those forces. At this early stage, the court must determine whether the president followed the congressionally mandated procedures for his actions, because without it, the president, even though he's the commander in chief, cannot federalize and take over state militia.

That is the very core of our federalism program, right? Which keeps our states aligned and in a union for our federal government. The court goes on and says, "The court must determine whether the president followed those congressionally mandated procedures for his actions." The judge then said, "He," meaning Trump, "did not. His actions were illegal."

both exceeding the scope of the statutory authority and violating the 10th Amendment to the United States Constitution. He must therefore return control of the California National Guard to the governor of the state of California forthwith. Particularly at the very end, pages 35 and 36 of the order, the judge lays out exactly what's going to happen next so that we all know.

He's enjoined temporarily the defendants, meaning the Trump and Trump administration, from deploying members of the California National Guard in Los Angeles, and they're directed to return control. Now, he has, Judge Breyer, stayed his order until tomorrow at noon Pacific time.

That gives, without saying it, that gives the Trump administration time to go to the Ninth Circuit Court of Appeals and seek a stay. If they don't get that stay, this becomes a 1201 Pacific time tomorrow. This order goes into effect.

Plaintiffs are ordered to post a nominal bond of $100. That takes care of the bond issue. And then the judge set up a briefing schedule and an order to show cause mechanism requiring the government, Trump, to show cause why the next level of injunction or block, the preliminary injunction, should not issue. And that he wants a hearing on the 20th of June, just about a week away. Now let's get down to the details. How do we get here? June the 6th.

Donald Trump starts his deportation raid program without coordinating it with state officials or local officials or local law enforcement or the governor, basically creating or fabricating or manufacturing a tense environment that tipped over at times into being riotous. The question is, was it rebellious, a rebellion, as that term was used back in 1903 when the statute Donald Trump is relying on was written?

And the judge looked at it and said, no, I looked at all the dictionary definitions that go back to 1903. And what we watched was not a rebellion. In fact, the judge says it is a scary proposition for the government to allege that the assertion of a First Amendment right of free speech, which may have fringes of it of people acting in an unruly way, suddenly could be transformed into a rebellion in order to crush it.

And the judge is putting a stop to that, at least for now. Here's what the court then said after going through ICE coming in, the public's reaction, and what happened. One of my favorite parts of when the judge takes on that this is not a rebellion, this is not organized violence, he notes that some people were throwing mangoes.

Yes, that fruit and the supermarket. And he's like, well, I don't know if mango throwing, water bottle throwing and chair throwing constitutes an armed rebellion, which is required for Donald Trump to invoke the statute that he's using. Because let's just take a take a breath for a minute. Donald Trump has not declared the use of the Insurrection Act that there was an insurrection. So he's stuck with the statute that he's using, which is 12406.

10 USC 12406, which has three triggering events, one of them being rebellion and the other one being, the main two, the other one being that the president can't faithfully execute his laws. Neither apply because the judge says so. The judge, Judge Breyer, also tears down the argument. We heard it in his hearing earlier today and stops Trump right in his tracks when he says, your position is,

that you alone as the president can declare what is or what is not a rebellion. And that that is a political question as that term is used in the Supreme Court that can't be reviewed by a federal judge. And Breyer said, that's wrong. That is wrong dating back to Marbury versus Madison in 1807.

You know, we we do federal oversight as judges as to whether you were right or wrong about exercising that power. And if you're right, then you're allowed to exercise the power. But if you're wrong, it's up to the courts to declare that.

which I thought was a very, very telling comment. After he goes through the whole analysis on page nine, he starts with section 12406, the conditions for federalization. He says that through the Militia Act of 1903, Congress authorized the president to call into federal service members of the National Guard of any state, but only if, and then he goes through the factors. He then takes on what I called or what he called justiciability.

Can a federal court, even a judge, provide oversight for presidential action? He starts on page 10 with Marbury v. Madison in 1803, and he says it is emphatically the province and duty of the judicial department to say what the law is.

Indeed, this is what he says on page 11. Indeed, at the hearing, which was today, defendants contended that the president could invoke Section 12406 on no evidence whatsoever and remain immune from judicial review. And to be sure, when the executive possesses a constitutional or legal discretion, their acts are only politically examinable, meaning you fire them at the election on Election Day.

Defendants misconstrue the plain language of 12406, the judge says. The statute permits the president to federalize the National Guard whenever one of the three enumerated conditions are met, not whenever he determines that one of them is met.

He says that Trump is putting the cart before the horse for the president to exercise his discretion as to how many National Guard members or units to federalize. Their first must be an invasion, a rebellion or an inability to execute the laws. The president's discretion in what to do next does not mean that the president can unilaterally and without judicial review declare that a vacancy exists in order to fill it.

He then takes on the analysis of a Trump and adopts the analysis of a Trump appointed judge, Judge Rodriguez, in the Southern District of Texas back in May in a case called J-A-V, in which that judge shot down Donald Trump's use of the Alien Enemies Act. And the judge, Judge Breyer says, I like this analysis because Trump is raising the same arguments.

He's saying everything's a political question and I'm immune from judicial review. And that's wrong. It was wrong as Judge Rodriguez laid it out. And now Judge Breyer has adopted that framework and taken it wholesale in what he calls the thoughtful reasoning in JAV. I love the fact that Judge Breyer is using the analysis of a Trump appointed judge, Judge Rodriguez in Texas. He then goes through what the definition of rebellion is.

including an open, organized, and armed resistance to an established government or ruler, an organized attempt to change the government through violence, deliberate, organized resistance by force and arms to the laws and operations of the government committed by a subject. And he goes on.

He said under any of that analysis, this is on page 19, the protest in Los Angeles fall far short of what is defined as a rebellion. Defendants refer repeatedly to violent rioters and mobs. And so the court pauses to state there can be no debate that most protesters demonstrated peacefully. Nonetheless, it is also beyond debate that some individuals use the protest as an excuse for violence and destruction and destruction.

Some bad actors on June 6th, sometimes I say June 6th, I'm about to say January 6th, on June 6th threw concrete chunks, bottles of liquid, and other objects at officers.

Some people threw fireworks. Someone fired paintballs and a crowd injured five officers. Violence is necessary for a rebellion, Judge Breyer says on page 19, but it is not sufficient, even accepting the questionable premise that people armed with, now listen to this list, fireworks, rocks,

mangoes, concrete, chairs or bottles of liquid are armed, as that term would have been used in 1903, the court is aware of no evidence of any actual firearms. There is little evidence of whether the violent protesters were open or avowed. In other words, that they organized and coordinated together. And that is the definition of rebellion.

The court is troubled. This is on page 20 about the First Amendment implications. The court is troubled by the implication inherent in defendants argument, Trump's argument that protests 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. Any departure, but our Constitution says we must take that risk, the judge concludes. Applying these principles, courts have repeatedly reaffirmed that peaceful protest is

does not lose its protection merely because some isolated individuals act violently outside the protection of the First Amendment, citing case law. That's on page 21.

Finally, as we get into the other analyses, he says that they also violated 12406's requirement that they have to go through the governor to have those orders issued. They said, well, we satisfied that judge. The judge said, how? So we wrote through the governor at the top. I'm not making this up.

The judge says that's not sufficient. We're not saying the governor has veto power, but you got to coordinate with the governor. If not, you might have to use another statute or the Insurrection Act if you need to go around them, so to speak.

He also found a violation of the 10th Amendment, which is briefly that the federal government is defined by statute, its powers, and by the Constitution. And if it's not there, all remaining power resides in the hands of the state and the people.

And that's state sovereignty. And that's what's also under attack. Now, what does it mean that the judge, let's end it this way, the judge has stayed this until tomorrow at about noon on Pacific time. That is giving the Trump administration the time to run to court and try to get a stay.

I don't think they're going to get the stay. Depends on the three-judge panel. I'll report on it here on Midas Touch and on Legal AF. Assuming they don't get the stay, this goes into effect. And they're going to have to deal with a preliminary injunction hearing and briefing from now until next week, in addition. So if they don't get the stay, they'll file an emergency appeal at the Ninth Circuit.

If they don't like the ruling there, they'll try to take an emergency petition to the United States Supreme Court. First stop on that train, Justice Kagan, who sits in the moderate left-leaning wing, the democratically appointed wing to decide. She'll probably refer it over to the full group. And we may have yet another, I think it's up to 20 now, emergency petition request.

that's going to be up before the United States Supreme Court on a skeletal record, not enough briefing, no oral argument, and then a ruling. Because that has been par for the course so far. I'm glad you're here on Legal AF and on the Midas Touch Network. Take a moment, hit the subscribe button here. Come over to Legal AF, the YouTube channel. Hit the subscribe button there and continue to set your reminders for our almost hourly reports at the intersection of law and politics. Until my next report, I'm Michael Popock.

In collaboration with the Midas Touch Network, we just launched the Legal AF YouTube channel. Help us build this pro-democracy channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe at Legal AF MTN. That's at Legal AF MTN.

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