“Do you hear the people sing?
Singing a song of angry men?
It is the music of a people
Who will not be slaves again!
When the beating of your heart
Echoes the beating of the drums
There is a life about to start
When tomorrow comes!”
Thank you, Donald Trump, for reminding us…
“Will you join in our crusade?
Who will be strong and stand with me?
Beyond the barricade
Is there a world you long to see?
Then join in the fight
That will give you the right to be free!”
Watch the video above (my weekly lunch with Lincoln Square) as Jeff Timmer and I discuss the most authoritarian week yet of Trump’s second term, his ironic visit to Les Mis., and what we can do about it—including protesting tomorrow.
BREAKING: Big Win for the Rule of Law
And amid this dark week, let’s take a close look at last night’s federal court decision ruling that Trump’s actions in California are illegal.
The Facts:
Importantly, the district court concluded that prior to Trump’s nationalizing of the national guard, “[l]ocal law enforcement brought the situation under control by 4:00 a.m….About 11 people were arrested for engaging in unlawful behavior at the protests that night.”
Trump’s June 7 Memorandum to federalize the national guard in California came after this. The Court found that his action didn’t quell the scene, but escalated it. (NOTE: A trial court’s factual findings are owed great deference by higher courts).
Trump’s Memorandum Nationalizing the Guard:
The court pointed out two important points about Trump’s June 7 memorandum:
It “did not name California, Los Angeles, or any other geographic area” specifically, meaning it applies nationwide
It declared: “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”
Later that day, Secretary Hegseth issued an order “attaching the June 7 Memo, and announcing that 2,000 members of the California National Guard were being ‘called into Federal service effective immediately for a period of 60 days.’”
The court found: “Defendants did not notify Governor Newsom of their intent to federalize the California National Guard prior to issuing the June 7 Memo or the June 7 DOD Order.”
Despite Trump and others’ rhetoric, “[t]he parties have not introduced any evidence of any protesters carrying firearms, and there is no evidence of any organized (as opposed to sporadic) violence.”
Again, the court also concluded that Trump’s action insitigated the crowds: “local law enforcement arrests jumped after the National Guard was deployed….President Trump and Secretary Hegseth’s unilateral exercise of federal power risks doing more harm than good.”
The Law
The applicable federal statute allows the President to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary,”
“but only if” one of three conditions is met:
“(1)the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.”
The Court addressed a number of arguments in assessing if any of these three prongs were met:
Argument 1: Trump argument: no court should be able to even rule if its current action is legal or illegal—labeling it a “political question” that no court can review. (this is the doctrine that the Supreme Court has used to conclude there is nothing it can do about gerrymandering).
The court concludes that, particularly because it “implicates the President’s domestic use of military force, a matter on which the courts can certainly weigh in,” it can rule in this case: federal law “does not reserve to sole presidential discretion the determination of whether a rebellion has or is in danger of occurring or whether the President is unable to execute federal law.”
Argument 2: Trump argument: “there [was] a rebellion or danger of a rebellion against the authority of the Government of the United States”
Digging through dictionary definitions of the term “rebellion,” the court concludes a rebellion must include the following: “First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.”
The court concludes that the situation in Los Angeles falls “far short of rebellion….While 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. The definition of rebellion is unmet.”
“Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion….[P]eaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment.”
Argument 3: Trump argument: “the President [was] unable with the regular forces to execute the laws of the United States.”
Court: “The statute requires that the President be ‘unable’ to execute the laws of the United States. That did not happen here….In this case, the regular forces were and are still very much on duty. While ICE was not able to detain as many people as Defendants believe it could have, ICE was nonetheless able to execute the federal immigration laws. Indeed, ICE continues to carry out enforcement actions, executing those laws.”
Argument 4: Trump did not seek or obtain the Governor’s support to federalize the national guard.
Incredibly, the Trump Administration tried to argue that '“they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” Opp. at 17. True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility.”
I’d say so!
Tenth Amendment
“Although Defendants identify some stray violent incidents relating to the protests against ICE raids in Los Angeles, and from there boldly claim that state and local officials were “unable to bring rioters under control,” Opp. at 19–20, it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws. Quite the contrary, the Founders reserved that power, and others, to the states in the Tenth Amendment.”
“whether or not the National Guard is exercising illegitimate federal police power in Los Angeles, the unlawful federalization of those members has interfered with the state’s legitimate police power, and thus it violates the Tenth Amendment.”
The Harm
The court pointed out the ultimate irony here: “[F]ederal overreach risks instigating the very behavior that the federal government fears. To put a finer point on it, the federal government cannot be permitted to exceed its bounds and in doing so create the very emergency conditions that it then relies on to justify federal intervention.”
The Order
“Defendants are temporarily ENJOINED from deploying members of the California National Guard in Los Angeles.”
“Defendants are DIRECTED to return control of the California National Guard to Governor Newsom.”
This order is stayed until noon today.
No doubt an appeal is coming.
Day 202—June 12, 2025
Sitting US Senator Alex Padilla was physically pushed out, pushed to the ground, then handcuffed for appearing and attempting to ask questions at a press conference being held by Department of Homeland Security Kristi Noem about ICE and military activity in his state.
Although video footage shows that Padilla clearly states he is a US Senator, Noem and other officials later stated they did not know he was a sitting US Senator.
Share this post