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Trump Administration Argues 'Too Bad, So Sad' In Court Over His Military Takeovers

For the state of California, President Donald Trump’s deployment of Marines and National Guard in response to protests over immigration raids in Los Angeles was an illegal “military crusade” based on Trump’s desire to push his political agenda and silence dissent. For the Trump administration, it’s about the protection of federal law enforcement officers against a “rebellion.” 

For a judge who weighed both of those arguments this week in San Francisco, it is up to him to decide what the limits are on presidential power, at a time when that president’s thirst for militarizing cities is growing and Justice Department lawyers argue that states have no choice on the matter.

Senior U.S. District Judge Charles Breyer heard arguments, evidence and witness testimony over three days this week underpinning California Gov. Gavin Newsom’s lawsuit against the Trump administration, alleging that the federalization of troops deployed to the Golden State violated the Posse Comitatus Act. The 1878 law bans the use of the military in civilian law enforcement activities unless there is consent from Congress or it is “expressly authorized by the Constitution.”

The administration’s arguments seemed to largely hinge on claims that Trump’s authority to deploy forces is sweeping because he has a vested interest in protecting the United States and that is part of his inherent constitutional powers as president — the doctrine is called “protective power.” In effect, the department argued, it was virtually impossible for Trump to violate the Posse Comitatus Act. 

“Even if the plaintiffs can bring a civil cause of action under the theory that the government’s conduct was  “ultra vires” ― meaning beyond its lawful powers ― the standard is exceedingly high,” Justice Department attorney Eric Hamilton said.

Breyer often seemed dubious when it came to many of the Justice Department’s arguments. He also seemed skeptical of the carve-outs and exceptions the administration said gave Trump vast powers. At one point, he even asked Justice Department attorneys why he was being bothered to review reams of evidence about the Posse Comitatus Act at all, since it seemed the president had already drummed up an exception that made it irrelevant. 

“I mean, it’s like, gee, maybe you should tell your client that they don’t have to follow the Posse Comitatus Act if that’s your view,” he said. At a later point, Breyer told one U.S. attorney that “you can’t just look at words and, sort of like ‘Alice in Wonderland,’ say words mean whatever I want them to mean.”

The case centered on Trump’s move to deploy 4,000 National Guard troops and 700 Marines to Los Angeles this summer, over the objection of the state officials who would normally have jurisdiction. Trump claimed they were needed due to supposed rioting, an echo of the claim he would use again the same day in a different venue when the trial started: On Monday, Trump formally announced that he was deploying 800 National Guard troops into Washington, D.C. and threatened that more cities could soon find themselves under a federal takeover including New York City, Baltimore, Chicago and Oakland.

The combination of the trial in California and the troops mobilized to D.C. gives a new urgency to the issue before Breyer. When urging the judge to issue a preliminary injunction, or a stop, to Trump’s deployment of troops to Los Angeles and declare that he violated the law, California Deputy Attorney General Meghan Strong encapsulated the stakes that are now involved for every American. 

“The federal government wants a display of military force so great that any lawful opposition to their agenda is effectively silenced,” she said. 

What Hangs In The Balance

Newsom never wanted federalized troops trawling Los Angeles. Immigration enforcement, he said in June, was something California was “no stranger to” and no federal assistance was required. The same went for quelling pockets of civil unrest that sprang up in response to staged immigration raids, including those at MacArthur Park — a public park, not federal property — where nearly 100 troops equipped with Humvees and other “shows of force” appeared but ultimately came up empty-handed.

Trump’s memo calling up the Guard and Marines claimed that the protests in Los Angeles “constitute a form of rebellion against the authority of the government of the United States,” which allowed him to invoke a statute known as Section 12406. The obscure federal code states that if there is a rebellion or “danger of a rebellion” against the government, and it cannot be resolved through regular order, then the president has the right to “call into Federal Service” any amount of National Guard he deems appropriate. 

“Rebellion” is not legally defined, but even if it were, the state of California says it wouldn’t matter in this instance because the protests in Los Angeles never came close to truly overwhelming local, state or federal law enforcement. And once troops were on the ground, the state says, the Trump administration made direct and active use of the military to execute the laws, something that is verboten under the Posse Comitatus Act. 

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The Trump administration insists those troops were only there in an indirect capacity and were providing “protection” and support to federal agents under what Defense Department memos deemed “constitutional exceptions” to the 1878 law. And what’s more, the Justice Department claims that because the Posse Comitatus Act is a criminal statute, and Newsom brought a civil lawsuit to stop the administration, Breyer lacks the jurisdiction to place any injunction on the president. 

When Breyer heard this in court, it appeared to stop him cold. He posed a hypothetical to DOJ attorney Eric Hamilton: If, Breyer said, Trump had violated the Posse Comitatus Act, what then?

“What then is the remedy? You say there is no civil remedy. Are you saying the president could be prosecuted by the Department of Justice for a criminal act? And you say that in light of the Supreme Court’s immunity decision. Isn’t he immune?” Breyer asked, referencing the 2024 Supreme Court ruling which declared the president has legal immunity for anything related to his “official” acts. 

While Hamilton agreed that prosecution would certainly “implicate immunity issues,” the point was that, in the view of the U.S. government, no matter the defendant, there was no remedy available. 

FILE - Federal agents stage at MacArthur Park, July 7, 2025, in Los Angeles.

FILE - Federal agents stage at MacArthur Park, July 7, 2025, in Los Angeles. via Associated Press

Breyer seemed deeply skeptical. “So that’s it? It’s too bad, so sad, it’s over?” he asked. “And that’s the end of the case, even though it’s a violation, allegedly, of the Posse Comitatus Act?” 

This line of argument didn’t surprise lawyers for California, who left the judge with a stark assessment of a problem that has the potential to overflow beyond the borders of one state. 

“It lacks basic common sense to assert that a state that is being occupied by a standing army within the state’s borders has no legal recourse to challenge the unlawful conduct of these troops. That defies the basic principles of federalism and it ignores Congress’ clear intent when enacting the Posse Comitatus Act,” Strong argued. 

A Rock And A Hard Place

Over the years, the Posse Comitatus Act has been interpreted by the courts at length and it has always been a subject within the courts’ “core competence” to decide, said Laura Dickinson, a George Washington University Law School professor who specializes in national security, human rights issues and matters involving the law of armed conflict. 

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The judiciary is now in a massive “difficulty,” she says, as it tries to balance legitimate presidential deference with the interests of a public that still lives in a democracy bound by its Constitution.

“The executive branch is making very, very broad arguments about the limits of the court’s powers that we haven’t seen before,” she said. 

Besides the threat to the public, an unnecessary deployment also creates a lot of room for Marines and National Guard to find themselves in perilous or demoralizing situations. With more boots on the ground in American cities, the first risk, of course, is that people’s rights could be violated. 

FILE - A U.S. Customs and Border Patrol agent looks on during a protest outside the Federal Building on June 13, 2025, in Los Angeles. (AP Photo/Wally Skalij, file)

FILE - A U.S. Customs and Border Patrol agent looks on during a protest outside the Federal Building on June 13, 2025, in Los Angeles. (AP Photo/Wally Skalij, file) via Associated Press

“The Constitution applies to everything police do on U.S. soil and everything the military might do in a policing role on U.S. soil., so people have rights to be free from excessive use of force, or unwarranted or unlawful search and seizure,” Dickinson said. “The thing is, the National Guard and the Marines don’t get a lot of training, generally speaking, on what is considered essential to policing. Right now, [the] Guard under state control do some supporting work, so some units are getting training. But it’s very uneven around the country, and the rules for use of force by the military or Guard are very different in times of peace versus times of war.”

When troops are put into a volatile and highly politicized dynamic by policing fellow citizens, Dickinson said it “puts them on a knife’s edge.” 

“They must follow lawful orders of civilian authorities. That is crucial in a democracy, that is crucial for good order and discipline in the military. They are legally obligated to follow those orders. At the same time, they could be responsible for refusing to disobey manifestly unlawful orders,” she said. “When you put members of our military or National Guard, who have made great sacrifices to serve this country in this difficult position, it is really damaging.” 

Militarized cities aren’t usually found in democracies. By putting the nation’s cities, military and judiciary in the situation, it is having the exact opposite effect of the strong, stable, flourishing America Trump boasts of. 

“It risks making the U.S. look weak and unstable,” she said.

Where does this end? 

After the trial concluded, Judge Breyer did not say how quickly he would issue a ruling but only that it would be “soon.” 

If he rules in favor of California and finds that Trump violated the Posse Comitatus Act, then the administration will appeal, Hamilton said in court on Wednesday. The case will then go to the 9th Circuit Court of Appeals. In June, ahead of the trial, the appellate court already ruled that troops in L.A. could stay while litigation was pending because Trump had extensive, but not “unreviewable,” authority to deploy troops to American cities. 

If the 9th Circuit upholds a ruling in favor of California, then the next likely course of action for the Trump administration would be to go straight to the Supreme Court with a request for arguments on the merits of the case. There’s no guarantee that the High Court would hear it, but with any increase in troops being deployed, it may become impossible for justices to ignore. 

But by then, it may be too late. 

Tom Homan, the acting director of U.S. Immigration and Customs Enforcement, summed up the administration’s feelings when speaking to reporters on Wednesday. 

“President Trump doesn’t have a limitation on his authority to make this country safe,” he said. “There is no limitation.”

Joseph Nunn, counsel in the Brennan Center’s Liberty and National Security Program, told HuffPost that if Breyer issues an injunction directing the president to demobilize the National Guard and hand control back to California, there technically is “no wiggle room,” legally speaking, for Trump to ignore or flout the ruling. 

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If that happens and the administration appeals, the 9th Circuit may opt to issue a stay on Breyer’s injunction while the merits are weighed by the judges there. But in any scenario, Trump winning or California winning, Nunn sees a showdown at the Supreme Court as the most likely outcome. 

“It’s hard to know what Judge Breyer will decide but in an inevitable appeal… who knows what the Supreme Court will do, ultimately?” he said.

Alternatively, Breyer may find that the statute Trump invoked in his memo this June — Section 12406is a valid exception to the Posse Comitatus Act. While Nunn said he doesn’t read it that way, he could see a situation in which Breyer wouldn’t find it entirely unreasonable. 

“The statute, in some ways, reads like it should be an exception to the Posse Comitatus Act and there are multiple exceptions to it, like the Insurrection Act, for example,” he said.

In the past, when presidents wanted to use the military for domestic law enforcement, that was what they invoked. 

Members of

Members of "Street Performers of Radical Komedy, join activists at a rally to, "Take back MacArthur Park," and call for a boycott of Home Depot stores in light of recent immigration-enforcement operations in the area in Los Angeles on August 9, 2025. After the rally they marched to the Home Depot in the Westlake District that was raided last week by federal agents. They were also protesting the Trump administration's ongoing crackdown on illegal immigration. Genaro Molina via Getty Images

“The Posse Comitatus Act is the most important restriction on domestic activities of U.S. armed forces but it has an enforcement problem,” Nunn said. “This country has a problem when the president has too much authority to use the military domestically.” 

Since it is a criminal statute, it should be enforced by the Justice Department. And Nunn says in all of U.S. history, only two people have ever been prosecuted for violating the Posse Comitatus Act. (The convictions came in 1879, just a year after the law was enacted.) When alleged violations of the Posse Comitatus Act have come up in court before, it’s usually when a civilian criminal defendant has raised it in relation to charges against them, like asserting evidence against them was obtained in violation of the act, Nunn explained.

“California’s efforts here to enforce it through a civil suit seeking an injunction is novel. It hasn’t been tried before,” Nunn said. “But in these past cases, courts have virtually always found ways to either find that the Posse Comitatus Act did or did not apply, and if it was violated, make a remedy available.”

But here again, Nunn said, “there is a risk of arriving at this situation where this very important law is basically unenforceable.” 

If the Trump administration is given even a modest green light by Breyer, Nunn said it’s really up to Congress to decide whether it will reform or rein in the powers a president has to authorize the military for domestic use. 

“That’s Congress’ problem to fix. That’s not a function of the president,” Nunn said.

Laws that govern the domestic use of military force would need a broader overhaul. The law, Nunn said, is like a “bird’s nest of overlapping things with various loopholes that need to be closed.” But if just thinking about the Posse Comitatus Act, Nunn says the first thing that should be done is to make it so the act is not a criminal statute and reform it so that people and states can sue to stop violations of the act — and potentially seek damages — if they have been harmed.

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The memo that Trump signed in June purporting to grant authority to the military to deploy federalized National Guard troops and other active duty forces is something Nunn said he encourages the American public to review carefully. 

“The memo doesn’t mention Los Angeles. It doesn’t mention California. It has no time limit or temporal boundary. There is no geographic boundary. So that memorandum asserts the authority to deploy federal armed forces to assist law enforcement anywhere in the country at any time for any reason,” Nunn said. “Nothing like this has ever happened before in the history of the United States. The last person to assert such sweeping authority to use the military anywhere at any time in this country was King George.” 

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