Lawyers for the state of California and the federal government faced off in court Tuesday over President Trump’s deployment of thousands of National Guard troops to Los Angeles.
The attorney for the state, Meghan Strong, argued that having what she called a “standing army” in Los Angeles is “unprecedented” and goes against a “deep-rooted policy against military involvement in civilian life.” She said that Mr. Trump and Secretary of Defense Pete Hegseth “think that they can disregard that policy on a whim.”
Californians “have been forced to endure anxiety and fear caused by the pervasive presence of this standing army,” said Strong.
Mr. Trump sent in around 700 Marines and 4,000 California National Guard troops to protect federal property and law enforcement agents during a series of protests against Immigration and Customs Enforcement operations in early June. The deployment prompted a lawsuit from Gov. Gavin Newsom, who did not approve of the use of his state’s Guard forces and called the move an illegal “power grab.”
At issue in the three-day bench trial pitting Newsom against the Trump administration is whether the troops violated the Posse Comitatus Act, which generally prohibits military personnel from carrying out domestic law enforcement.
Strong alleged that the federal government acted in violation of that 1878 law, saying troops were used to provide armed security for federal agents, set roadblocks and perimeters that restricted civilian movement, and detained civilians.
California asked U.S. District Judge Charles Breyer for an injunction that would let the military protect federal property — like courthouses and ICE facilities — but block it from continuing the support for immigration enforcement operations, which the state’s lawyer called an “unlawful military crusade.”
Meanwhile, Eric Hamilton, a lawyer for the Justice Department, argued that the military deployment is legal, with the purpose of protecting federal property and personnel. He said that no violation of the Posse Comitatus Act exists.
The federal government’s only witness — Maj. Gen. Scott Sherman, who was at one point commanding general of the Guard task force in Los Angeles — said he was instructed “that we were not conducting law enforcement operations and that we were there to serve the United States.”
“We took our duty very seriously, and care and professionalism was always exhibited,” he said.
Mr. Trump justified the deployment using a law called Title 10, which allows the president to call up Guard forces during a “rebellion,” or if he is unable “with the regular forces to execute the laws of the United States.” In an early June memo, Mr. Trump said the protests in Los Angeles “constitute a form of rebellion” and endangered federal agents.
Breyer had previously ruled that Mr. Trump used Title 10 unlawfully, but he was overruled by an appellate court that said Mr. Trump had discretion to decide if that law applied.
Since then, most of the troops have left Los Angeles, with roughly 300 Guard forces remaining. But the issue has drawn more attention in recent days, as the Trump administration deploys National Guard forces to Washington, D.C.
The administration says that deployment is necessary to support law enforcement and crack down on violent crime, but local leaders have condemned the federal government’s intervention.
Strong cautioned that “Los Angeles is only the beginning,” citing recent comments from Mr. Trump that she said indicated he may deploy the National Guard to other cities, including Oakland and New York.
A “constitutional exception?”
Parts of Tuesday’s testimony hinged on an alleged “constitutional exception” to the Posse Comitatus Act.
At one point, Sherman referred to a “constitutional exception.” He testified that he was advised federal troops were allowed to do “four things” that would normally be barred under the law — security patrols, traffic control, crowd control and riot control — “because it was in line with what the President was directing” and “what the Secretary of Defense was directing.”
But Judge Breyer was unaware of such an exception and pressed Sherman on the issue.
“I’m not a lawyer,” said Sherman.
“That may be to your credit,” responded Breyer.
Breyer later asked if Sherman ever received legal advice that if the Guard task force engaged in certain activities, it would violate the Posse Comitatus Act. Sherman testified that he was told, since Mr. Trump’s memo said the Los Angeles protests were a form of rebellion that prevented federal agents from doing their jobs, that triggered the constitutional exception. “This is all the way from the top of DOD down to Task Force 51,” he said.
California’s attorney, Strong, disputed this “mysterious constitutional exception,” arguing that neither the president nor the secretary of defense “can create an exception to the Posse Comitatus Act.”
“That means all the directives we’ve seen the past two days are wrong and what they told soldiers to do was illegal,” she said. “Those directives are based on a constitutional exception that doesn’t exist.”
One exception to the Posse Comitatus Act is the Insurrection Act, which lets the president use the military to enforce the law during an insurrection. Mr. Trump has not invoked that law.
“If he calls something a rebellion, it is a rebellion?”
Mr. Trump’s description of the Los Angeles protests as a “rebellion” was raised again in court on Tuesday, after Sherman testified Monday that he didn’t hear the term used to describe the demonstrations.
Sherman clarified on Tuesday that he knew Mr. Trump’s memo called the protests a rebellion.
The judge later pushed back against the idea that Mr. Trump has the discretion to decide if a “rebellion” is occurring. “If he calls something a rebellion, it is a rebellion?” Breyer asked, repeatedly.
The federal government’s attorney, Hamilton, said that the president is commander in chief, and he’s entitled to deference in that judgment. But when asked by the judge multiple times, he acknowledged that it doesn’t make it a rebellion.
Breyer further questioned Mr. Trump’s ability to dictate what the law allows, when Hamilton argued that there was no violation of the Posse Comitatus Act because the military was serving a protective function in Los Angeles.
“Are you saying that because the president says it, therefore it is?” said Breyer.
“If the president says you can do X,” he continued, “because the president has said it, that’s sufficient to take it out of the Posse Comitatus Act?”
The trial will conclude on Wednesday.
