In a straightforward and carefully reasoned order on Thursday, California Federal Judge Charles Breyer (the younger brother of former U.S. Supreme Court Justice Stephen) took apart the Trump administration’s legal and operational rationale for its unlawful deployment of troops including National Guard and Marines to violate posse comitatus and enact Donald Trump’s designs on the ground, ordering a temporary restraining order on the troops’ use.
While the order was stayed until an appeals hearing on Tuesday, this domestic military operation has now been found to be unconstitutional.
The crux of Breyer’s position was that not only are the deployments per se illegal, but there is no actual emergency that these troops are responding to beyond the one manufactured by the president. If Trump’s candidacies and terms in office have had one overarching characteristic it is the belief that he could or should generate reality by sheer force of will and public messaging.
The long debate about whether Trump is intentionally lying or not is semantically interesting but ultimately irrelevant; the real estate promoter/TV host turned president simply knows that if he spins certain tales, he can make things happen as he wants them to happen.
Breyer correctly lays out that the fundamental purpose of the troops’ deployment in California is not to reestablish or maintain order because order was never lost in the first place. California authorities, including the LAPD and the L.A. County Sheriff’s Department, had responded to the protests — which were not particularly extensive, nor notably, violent — and had clear control of the situation long before soldiers began arriving in the city.
On the legal side, Breyer properly agreed with not only one but all three of California Gov. Gavin Newsom’s statutory claims, along with his 10th Amendment argument, noting among other things Trump’s dangerous conflation of First Amendment-protected speech with rebellion, and ridiculing the notion that protesters armed with, among other things, mangoes could possibly be engaged in an act of organized and armed rebellion against the government.
The judge’s tone is one of bewilderment because these circumstances are indeed bewildering, and no doubt would be to the Founding Fathers who expressly rejected monarchy and established a system of government where the citizenry would be free to express its discontent at government policies.
We are frankly hard-pressed to envision any particular reason to allow the execution of a policy that a judge already determined violated multiple laws and the Constitution, and without which the federal government would suffer absolutely no harms given that, again, there is no conceivable rebellion or emergency in California that must be dealt with.
White House Deputy Chief of Staff Stephen Miller — who in many ways seems to be driving the ship when it comes to Trump‘s domestic policy — has long fantasized about using the military to engage in domestic enforcement and lately taken to publicly describing the effort as some kind of liberation of L.A., explicitly adopting the language of military operations and occupation.
One of the red lines that Breyer lays out is the military being seen to directly engage in enforcement. Not long after, Reuters confirmed that Marines had detained a civilian who was only trying to get to the V.A. This is a dangerous precedent that should be quickly unwound.
