A federal judge on Thursday expressed deep skepticism over the Trump administration’s mobilization of California National Guard troops to support immigration enforcement against protesters in Los Angeles this week, signaling that he would decide “very soon” whether to restrict the troops’ use.
But in evaluating California’s request for a temporary restraining order against the federal government, the judge, Charles Breyer of the Federal District Court in San Francisco, also signaled that he was unlikely to limit President Trump’s use of active-duty Marines because they have not yet deployed to the streets of Los Angeles. He said that if they did head to the city, it might raise a problem under a 19th-century law, the Posse Comitatus Act, but he did not think it was appropriate to rule on something that has not happened yet.
“I don’t understand how I’m supposed to do anything with the Marines, to tell you the truth,” the judge said, later adding, “I just sort of don’t think that’s my business.”
Judge Breyer, who was nominated by President Bill Clinton in 1997, opened the hearing with a heavy focus on whether the National Guard had been improperly activated. The statute President Trump cited as the authority for his move says that such orders must go “through” governors, but Defense Secretary Pete Hegseth instead sent the directive to the general who oversees the Guard, bypassing Gov. Gavin Newsom of California.
Through the first hour of court proceedings, Mr. Breyer, sporting a light-blue bow-tie, seemed skeptical of the Trump administration’s arguments. He interrupted the Justice Department’s lawyer repeatedly and at one point waved a small copy of the Constitution in the air. Some of his pointed replies drew laughs from the packed courtroom of more than 100 people.
Though the state of California has for now requested an order limiting the military to guarding federal buildings, it is also making a broader argument that Mr. Trump has far exceeded his authority.
“The version of executive power to police civil communities that the government is advancing is breathtaking in scope,” Nicholas Green, the state’s lawyer, said. “That is an expensive, dangerous conception of federal executive power.”
Judge Breyer said that he would move “expeditiously” but also explained that he had waited for briefings and arguments because it was important to carefully consider both sides’ arguments and the factual circumstances — especially because “the issues are extremely significant” and “the matter has urgency about it.”
The fast-moving case, which the state filed on Monday, challenges the legality of Mr. Trump’s move, which included taking control of up to 4,000 California National Guard troops and sending in 700 Marines.
The Justice Department lawyer, Brett Shumate, argued that Mr. Hegseth had complied with the National Guard call-up statute. But even if he hadn’t, Mr. Shumate said, Mr. Trump had the legal authority to order the National Guard into federal service anyway.
He also argued that Judge Breyer had no authority to second-guess Mr. Trump’s determinations that factual conditions listed in the call-up statute — such as whether there is a rebellion against federal authority — were actually true.
The judge seemed deeply skeptical of that argument, suggesting that it would give a president the powers of a king.
“This country was founded in response to a monarchy, and the Constitution is a document of limitations,” he said.
As the hearing drew to a close, Mr. Shumate requested that if judge issues a restrictive order, he do so in a way that would make clear that the government could immediately file an appeal. Mr. Green said the state did not object to that step.
Since being federalized and deployed, some National Guard troops have accompanied ICE agents on raids while others have primarily stood outside federal buildings in downtown Los Angeles during protests. The Marines are still preparing for deployment in the region.
Mr. Newsom has argued that both military forces were unnecessary and had inflamed a situation that local law enforcement officers can handle in California — and that he would deploy the state’s National Guard himself should more force become necessary. California’s lawsuit also asserts that the Trump administration is trammeling states’ rights under the 10th Amendment.
The state has also cited the Posse Comitatus Act, which generally makes it illegal to use federal troops for law enforcement on domestic soil unless the president invokes the little-used Insurrection Act of 1807. So far, Mr. Trump has not done so.
The Justice Department in turn has argued that Mr. Hegseth did not need to ask Mr. Newsom to consent to the guard call-up. More broadly, it has argued that Mr. Trump has inherent constitutional power to use troops to protect federal agents and federal law enforcement functions.
The legal face-off comes amid escalating political tensions between the Trump administration and the California governor. After Mr. Trump’s border czar, Tom Homan, threatened to arrest Mr. Newsom, Mr. Trump endorsed the idea on Monday, saying “I’d do it.” Mr. Newsom on Tuesday said in a televised speech that “democracy is under assault right before our eyes.”
No president has deployed troops under federal control over the objections of a state governor since the civil rights movement era, when Southern governors were resisting court-ordered desegregation.
Charlie Savage writes about national security and legal policy for The Times.
Kellen Browning is a Times political reporter based in San Francisco.
Laurel Rosenhall is a Sacramento-based reporter covering California politics and government for The Times.
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