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  "description": "For your understanding of the national guard deployment ruling, I edited Judge Charles Breyer's 35-page ruling into an 11-minute read, removing legal citations and quotations.",
  "path": "/judge-breyers-national-guard-ruling/",
  "publishedAt": "2025-12-14T14:57:04.000Z",
  "site": "https://ielaw.news",
  "tags": [
    "As California prisons face ‘wave’ of sex assault lawsuits, new audit highlights slow discipline",
    "The audit",
    "Read it here"
  ],
  "textContent": "When reading about a federal ruling, you typically have two options: either hear one quote from the judge's ruling as selected by journalists and pundits, or scan the entire ruling. Neither options are great for understanding the legal reasoning. For your understanding of the national guard deployment ruling, I edited Northern District of California Judge Charles Breyer's 35-page ruling into an 11-minute read, removing legal citations and quotations. At the bottom, you'll see the entire PDF of his ruling.\n\n### Checks and balances\n\nThe Founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one. Six months after they first federalized the California National Guard, Defendants still retain control of approximately 300 Guardsmen, despite no evidence that execution of federal law is impeded in any way—let alone significantly. What’s more, Defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops. In response to Plaintiffs’ motion to enjoin this conduct, Defendants take the position that, after a valid initial federalization, all subsequent re-federalizations are completely, and forever, unreviewable by the courts. Defendants’ position is contrary to law. Accordingly, the Court enjoins Defendants’ federalization of California National Guard troops.\n\n### Likelihood of success\n\nA party seeking a preliminary injunction must establish a likelihood of success on the merits. Plaintiffs argue that they are likely to succeed in arguing that the subsequent federalization orders are unjustified, because there was no colorable basis to federalize the National Guard on August 5 or October 16. Defendants respond that Plaintiffs are unlikely to succeed, because (1) courts lack the authority to review a president’s subsequent federalization orders; (2) Plaintiffs have failed to state an ultra vires claim; (3) the August 5 and October 16 Orders satisfy the highly deferential standard of review; and (4) Plaintiffs seek relief that goes beyond the scope of the complaint. The Court addresses and rejects each of Defendants’ arguments.\n\n### Subject to judicial review\n\nDefendants first argue that the August 5 and October 16 Orders are not subject to judicial review. But \"it is emphatically the province and duty of the judicial department to say what the law is.” Deciding whether a party’s “interpretation of a statute is correct” is a “familiar judicial exercise.” And every court to consider whether federalization under Section 12406 is reviewable has answered in the affirmative. Undeterred, Defendants justify their recycled arguments by contending that Newsom was only “controlling” as to the President’s June 7 Memo, and that the Orders now at issue require different consideration. Defendants’ second run at reviewability also falls flat.\n\n### To create a perpetual police force\n\nFor starters, Defendants concede that “Newsom allows some measure of review of Section 12406’s prerequisites when Guardsmen are “called into Federal service.” That is explicitly what both challenged orders here do. August 5 Order, “The National Guard unit(s) . . . are called into federal service under Presidential Reserve Callup”; October 16 Order, California National Guard personnel were “called into Federal service under 10 U.S.C. § 12406, from November 4, 2025 to February 2, 2026”. By Defendants’ own admission, then, these orders are reviewable.\n\nDefendants nevertheless attempt to circumvent the scope of Section 12406 by characterizing the Orders as extensions of federalization, which they argue are outside the statute’s reach. Indeed, at the motion hearing, Defendants confirmed their position that, after an initial federalization, all extensions of federalization orders are utterly unreviewable, forever.\n\nThat is shocking. Adopting Defendants’ interpretation of Section 12406 would permit a president to create a perpetual police force comprised of state troops, so long as they were first federalized lawfully. Such a scenario would validate the Founders’ “widespread fear of a national standing Army,” which they believed “posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Defendants’ argument for a president to hold unchecked power to control state troops would wholly upend the federalism that is at the heart of our system of government.\n\nThe statutory framework repudiates Defendant’s position. As Plaintiffs argue, and as this Court discusses in greater detail below, Section 12406 “authorizes federalization only when one of its factual predicates is presently satisfied.” Accordingly, each affirmative order authorizing federalization—whether a subsequent, distinct federalization or what Defendants call an extension—must comply with Section 12406’s exigency requirements at the time it is effectuated.\n\nSection 12407, the statute regarding the period of federal service, further confirms the judicial authority for reviewability of the Orders.\n\nSection 12407 establishes that federalization terminates at the end of a president’s chosen period of service, or sooner. It necessarily follows that an order bringing the Guard back into service must again go through the President’s vehicle for federalization. Moreover, there are no statutes specifically relating to continuation or extension; as Defendants admitted at the motion hearing, only Sections 12406 and 12407 apply.\n\nThe timeline in this case is also illustrative. The President’s initial memorandum in June specified that “the duration of duty shall be for 60 days or at the discretion of the Secretary of Defense.” Secretary Hegseth’s memorandum carrying out the President’s declaration then specified that the federalization was “for a period of 60 days.” Then on August 5, the day before that initial period lapsed, Secretary Hegseth again called up National Guard troops for a 90-day period starting on August 8. And then again, shortly before this new period ended, Secretary Hegseth issued his October Order for another 90-day period ending on February 2, 2026. Clearly, Defendants’ own conduct demonstrates their understanding that Sections 12406 and 12407 work in tandem, requiring a re-federalization when the service period is set to expire. The August 5 Order and the October 16 Order are properly construed as calling Guardsmen into federal service and are thus reviewable under Section 12406.\n\nBut that does not mean that the President’s discretion over the service period is absolute or that the service period can be infinite. Plaintiffs persuasively point to legislative history indicating that Congress did not intend for the service period to last forever—just long enough to address the present emergency. The removal of the nine-month limitation was part of an effort to ensure the Guardsmen could “respond to a call for troops issued by the President under the conditions of emergency.” Then-Acting Secretary of War Robert Shaw Oliver made clear that the limit was “generously waived” with the understanding that Guardsmen would “render service in any theater of military activity to which they may be called, and to continue in such service until the necessity for their employment no longer exists.”\n\nConsequently, if this were a case where the President had neglected to specify a call-up period, it would still be reviewable under Section 12406’s preconditions. After all, it is nonsensical to suggest that the law would permit a president to take advantage of an exigency, omit a call-up period, and then send Guardsmen wherever he wanted for as long as he wanted. Such a scenario would make a mockery out of the narrow preconditions Congress set forth in Section 12406 when it delegated its call-up power.\n\nOf course a president is not required to identify a service period when first issuing a federalization order, because presidents cannot be expected to know at the start of an exigency how long it will last. But if the exigency is over and the President refuses to relinquish control over a state’s National Guard, the state may seek court review of whether Section 12406’s preconditions are still met, with all appropriate deference given to the President. Regardless, this scenario is not an issue here, where the President and the Secretary of War did identify periods of service. Those subsequent orders federalizing troops are reviewable under Sections 12406 and 12407.\n\nDefendants also raise other arguments opposing reviewability, which the Court briefly addresses here. First, Defendants attempt to characterize Plaintiffs’ motion as being centered on the quantity of Guardsmen federalized. Because Section 12406 gives the President the discretion to federalize the National Guard “in such numbers as he considers necessary,” Defendants argue that his management of headcount is unreviewable. But that is a red herring. Plaintiffs do not dispute the appropriate “number of federalized Guardsmen,” but instead argue that “the federalization is wholly unlawful.”\n\nSecond, Defendants argue that judicial review poses separation of powers concerns. They contend that review of the Commander-in-Chief’s on-the-ground decision making “would inject the Judiciary into the military chain of command” and constitute improper “micromanagement.” But reluctance does not mean refusal. Courts have reviewed—albeit cautiously—military actions before. And the Judiciary’s willingness to intrude into military affairs is greatest when the military is deployed domestically. The Supreme Court has emphasized:\n\n_Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation’s history or in this Court’s decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied._\n\nIn Sections 12406 and 12407, Congress has articulated the necessary preconditions for the President to exercise his delegated power; it is then up to the courts to review, with appropriate deference, whether those preconditions have been met.\n\nFinally, Defendants’ argument that reviewability would permit “judicial review on every day of the mission” is unsupported by the facts. Plaintiffs certainly have not peppered the Court with frequent challenges to Defendants’ federalizations, and the Court is not aware that Defendants have faced this issue in their other National Guard cases, either. Even if Defendants’ fear did come to pass, courts have long been capable of handling vexatious litigants and meritless actions. The Court determines that both the August 5 and October 16 Orders are reviewable.\n\n### There is a danger of a rebellion\n\nDefendants also argue that Plaintiffs are unlikely to succeed because, even if the Court can review the August 5 and October 16 Orders, those Orders “easily” satisfy Section 12406. Not so. In rejecting Defendants’ argument that a president’s determinations under Section 12406 are entirely unreviewable, the Ninth Circuit instructed that “courts may at least review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’” Even under that “highly deferential standard of review,” Plaintiffs are likely to succeed on the merits. Section 12406 provides that a president “may call into Federal service members and units of the National Guard” “[w]henever” one of three preconditions is met:\n\n1) The United States . . . is invaded or is in danger of invasion by a foreign nation\n\n2) There is a rebellion or danger of a rebellion against the authority of the Government of the United States\n\n3) The President is unable with the regular forces to execute the laws of the United States.\n\nOf these three preconditions to federalization, Defendants only truly advance one. Defendants do not argue that there was a foreign invasion (or danger thereof) that justified federalization. And they make only a passing argument in their briefing—and perfunctorily asserted at the motion hearing—that there was a rebellion (or danger thereof) in Los Angeles that justified federalization. But the suggestion that there was any danger of a rebellion was even more farfetched in August and October than it was in June, when this Court first rejected it. As the Court explained then, “[w]hile 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.” Other courts in recent months have reached a similar understanding. See, e.g., Illinois (“[B]ecause rebellions at least use deliberate, organized violence to resist governmental authority, the problematic incidents in this record clearly fall within the considerable daylight between protected speech and rebellion.”); Portland (defining rebellion as “an organized group engaged in sustained, armed hostilities for the purpose of overtaking an instrumentality of government by unlawful or antidemocratic means”). Defendants point to no evidence that the scattered protesters in Los Angeles in August or October were organized, collectively armed, or determined to overtake the federal government. Accordingly, the Court turns to the remaining precondition to federalization, and the one upon which Defendants primarily rely: that “the President is unable with the regular forces to execute the laws of the United States.” Defendants fail to satisfy two different requirements of that precondition: “is unable” and “regular forces.”\n\n### Risk of being unable to execute the laws\n\nDefendants insist that Section 12406 permits federalization based on “‘mere risk.’” Defendants asserted to the Ninth Circuit that “[p]rotests [in Los Angeles] are now less frequent, less violent, and generally pose a less significant risk to federal personnel and property compared to before the Guard was deployed[,] [b]ut that risk has not disappeared entirely.” They similarly assert here that there is a “continued threat of harm to federal personnel and property.” The Court shares Defendants’ concerns about public safety: all citizens in this country deserve to feel safe, and it is a core function of government to ensure that safety. Yet it is also a core right of the people to be able to gather in protest of their government and its policies—even when doing so is provocative, and even when doing so causes inconvenience. Every protest, and indeed any large gathering of people in public, carries with it a risk of violence, however unlikely. But the specter of a protest that is not a current impediment to the President’s ability to execute the laws becoming a future impediment is not adequate. It is profoundly un-American to suggest that people peacefully exercising their fundamental right to protest constitute a risk justifying the federalization of military forces. Such logic, if accepted, would dangerously water down this precondition for federalization and run headfirst into the First Amendment.\n\nRegardless, the applicable standard when reviewing a president’s decision to federalize the National Guard is not whether there are some threats of harm or risks to personnel and property. Those considerations are relevant to Section 12406(3) only insofar as they render the President presently unable to execute the laws. Notably, the first two preconditions for federalization permit a president to call up the National Guard even if there is only a danger of an invasion or rebellion. The third precondition, in contrast, does not permit federalization when there is a “danger” that the president will be unable to execute the laws, but requires a present inability to do so. Without a demonstration that the President’s ability to execute the law is currently being impeded at the time of deployment, he lacks adequate grounds for federalization under Section 12406(3).\n\n### Los Angeles in August\n\nIn August of 2025, the situation in Los Angeles was calm. Defendants, nonetheless, rely on two points to justify the August 5 Order. First, they cite to the declaration of Roger Scharmen, Deputy Regional Director for Federal Protective Services, which mentions the violence at the Roybal Building in “early June” and then no other incidents until October. Scharmen states that “continuing to the present, protests have continued, albeit in reduced numbers,” adding that typically there are fewer than 100 protesters, “but protests that are attended by up to 500 people still occur.” He also states that “the smaller protests are for the most part peaceful.” Second, Defendants point to a July 10 incident in Camarillo, California at a cannabis farm. In Camarillo, federal law enforcement initially requested assistance from the National Guard, then canceled that request, before coming under attack by a crowd throwing rocks. Defendants reason that “[m]ilitary decision-makers could reasonably rely upon such considerations in concluding that a small deployment of Guardsmen is still required.”\n\nBut an incident on July 10, 50 miles from Los Angeles, is not a compelling reason in and of itself to federalize troops on August 5. Even if there were exigent circumstances on July 10 in Camarillo, they had passed in the weeks thereafter, when there was no indication that ICE intended to return to Camarillo, when the National Guard was in fact assisting on “zero” ICE field operations like the one in Camarillo, and when Defendants had decided to release most of the Guardsmen.\n\nLikewise, even if there were exigent circumstances in early June at the Roybal Building, two months thereafter that exigency had passed, as there were often just a few dozen protesters, no violent incidents, and no arrests at that location. Defendants reason that while the unrest in June subsided, that abatement “was due at least in part to the presence of Guardsmen in Los Angeles.” But as Plaintiffs respond, “The point of federalization is to abate the exigency, so the claimed success of the federalization cannot be grounds for finding a further exigency.”\n\n### Available resources\n\nMoreover, risk must be viewed in the context of what resources are available to prevent, mediate, or manage it. The risk that a handful of people could overtake a federal building, for example, looks different if there is just one guard, as opposed to many, protecting that building. Consequently, it defies the record—and common sense—to conclude that risks stemming from protests—in August, October, or even present day— could not have been sufficiently managed without resorting to the National Guard. After all, local law enforcement like the LAPD, the LASD, and the California Highway Patrol have not only been willing to manage the protests, but have capably done so since June. That is even before considering the resources of Federal Protective Services, other federal civil law enforcement, or the military. One cannot colorably conclude that these organizations were so unable to manage the then-existing risk that the National Guard was required to protect the city’s federal buildings.\n\nAs this Court can attest, individuals protesting the federal government often gather outside federal buildings. There is always some risk that a protester will engage in violence. But, as the Court has explained, if the threat that a protester might engage in violence outside a federal building was all that it took for the President to federalize the National Guard, then the narrow preconditions of Section 12406 would be rendered meaningless.\n\nBased on a holistic evaluation, there is no colorable basis to conclude that the President was “significantly impeded” from executing federal law on August 5, 2025.\n\n* * *\n\n### Next: As California prisons face ‘wave’ of sex assault lawsuits, new audit highlights slow discipline\n\nFive California correctional officers who were accused of sexually assaulting incarcerated people over the last dozen years remain employed by the state, according to a new audit from the state prisons’ inspector general.\n\nThe audit, released last week, is a twice-a-year summary of how the California Department of Corrections and Rehabilitation addresses complaints about its staff members. Overall, the inspector general found fault with the internal affairs department’s investigations into prison guard misconduct.\n\nRead it here",
  "title": "Judge Breyer's national guard ruling",
  "updatedAt": "2025-12-14T14:57:05.976Z"
}