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Uh-oh. Judge Breyer Is Probably Going to Rule That Trump Cannot Call Out the Military in LA – Twitchy

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June 12, 2025
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Uh-oh. Judge Breyer Is Probably Going to Rule That Trump Cannot Call Out the Military in LA – Twitchy

Regular readers know we have been covering the latest and most ridiculous example of the lawfare that is tying up Trump. This author covered when Judge Breyer first denied the immediate request for a Temporary Restraining Order, setting a fast schedule for briefing on the subject and setting a hearing for today. This author also covered the DOJ’s Opposition, here.





We were not able to listen in to the hearing ourselves, but based on reports coming out of it, it doesn’t sound good for the Trump administration. While we have read other reports, we will focus on Margot Cleveland’s live coverage. We will skip right to the meat of it:

The cut off text:

Entered scheduling order directing file of briefs & appreciative of that. It is necessary to have briefing & I have always have done it, even though styled as ex parte, sufficient cooperation to allow complete record as possible given, important–issues significance, and urgency so I need to act expeditiously but takes into consideration the arguments of the parties. That’s the fair way to do it and way I’ve done it over the year and parties have been extremely helpful in this regard.

So, it’s the judge basically making some opening remarks. They require a little bit of legal translation to understand. First, in law they like to say something is ‘styled as’ something when most people would just say ‘officially’ when it isn’t really. So when the judge says that the hearing is ‘styled as ex parte,’ he is saying ‘this is officially ex parte, but not really.’

And ex parte means without the other side being heard. That means that Newsom wanted a hearing where Trump’s lawyers didn’t get a chance to speak up, but the court is not actually letting them do that.

Which is nice, but the judge also didn’t really give the Trump administration sufficient time to respond when writing their opposition. That resulted in a pretty embarrassing error in the DOJ’s brief, and in general it just doesn’t produce the best decisions. The best decisions require more time.

The cut off text:

When Judge acted on desire to nationalized California National Guard he sited this statute.

First, we suspect that Cleveland made a mistake. She probably meant something more like:

When Trump acted on desire to nationalized California National Guard he sited this statute.

And, hey, she’s writing fast and this is Twitter/X and mistakes happen.

In any case, he is asking if Trump complied with 10 U.S.C. § 12406. We gave you the text of that statute last night, here, and he is asking the DOJ’s lawyers if Trump complied with the procedures in the statute.

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And it is worth noting that this behavior is unusual. Newsom’s team made the motion. Typically, the side that made the motion goes first. But here, the DOJ is being forced to go first.

The cut off text:

DOJ: He would still have authority, nor would plaintiffs have right to relief. If he didn’t comply with statute (a procedural requirement), he still had that authority.

Here we think that the judge is trying to get them to admit that if the statute is not perfectly complied with, that they lose. And the DOJ lawyers are refusing to admit that.

Now, as a matter of logic, everything the president does has to be authorized either by statute or the Constitution. So logically speaking, they seem to be arguing that the President has inherent authority under the Constitution, something echoed in their briefing.

The cut off text:

Whenever & three conditions. You argue non-justiciable to decide if three conditions met, because of discretion for judge to make determinations. (Non-justiciable means judges aren’t allow to review & decide.)

Frankly, this part is a little muddled, but they seem to be arguing about whether the key questions can even be reviewed by a court at all. For instance, Trump can federalize the national guard if he determines that there is a rebellion or threat of rebellion. For almost 200 years, these determinations have been treated as unreviewable. But suddenly under Trump, this judge seems ready to second guess him.

In any case, for legal translation purposes when they say that the judge has no power to review the President’s determination, they often use terms like ‘non-justiciable political question’ or just that it is or is not ‘justiciable.’ So when you see terms like that in today’s argument, that is what they are talking about.

The cut off text:

Statute ‘shall’ we could agree means ‘mandatory. In this case, President directed Secretary of Defense to order Adjutant (sp?) General to turn over command to the president of the United States, because if federalized then President is commander-in-chief. And on that order itself Secretary of Defense said ‘Memo. for Adjutant General through the governor of California’ I’m trying to figure out if something is through someone if it wasn’t sent to him. 

Me: Judge is like a bad preacher. I feel for DOJ attorney being forced to bite tongue and smile to let Judge preach.





So, the judge reaffirms that when the statute says ‘shall’ then the person in question has no choice. The judge doesn’t say this but ‘may’ is the word used when the person has a choice. The statute in question says, in relevant part:

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States[.]

So the President may, but doesn’t have to, federalize the national guard. And the court argues that the order to do so shall be issued through the relevant governor.

In their opposition, the DOJ argued—and we think correctly—that the governor has no choice but to issue the orders turning them over to federal control.

In any case, the judge is about to drill down into whether or not the order was issued through the governor:

The cut off text:

Doesn’t say ‘by’ or ‘with permission’ the governor is a ‘conduit’ for order.

Judge: Why even bother to put that language in the statute? Doesn’t that assume there will be a discussion with Governor who was elected? And serves a political role which may want to express to the president.

DOJ: If Congress wanted consulting, or to object. There is no discretion given to the Governor.  Governor is merely a conduit. When president makes decision, state’s are subservient.

Me: Judge seems poised to rule Trump didn’t call them up.  Of course he might be playing devil’s advocate.

Naturally, by the end we think it is clear that the judge is not merely playing devil’s advocate. But as we said in our last post, we think that the DOJ is right. Given that other similar statutes explicitly require the governor’s consent and this one does not, we do not believe Newsom has a right to refuse to issue that order.

The cut off text:

So I look in statute and it starts out with requirements that there be one of these things a) foreign nation invasion (not in issue).

DOJ: Is there an invasion. That is inherently political. 

Judge: I don’t need to go there because president didn’t go there.

DOJ: If prong 1 is non-judiciable, likely that #2 and 3 aren’t either.

Judge: It speaks to foreign nations, and because foreign affairs have different deference.





Except actually it is the same deference whether we are talking about foreign affairs or the powers of war, as in the judge isn’t supposed to be second-guessing the president.

The cut off text:

Or is unable with regular forces to execute laws of U.S. what do you understand ‘regular forces,’ does that include LA police, 

DOJ: Means everything other than state national guard. 

Judge: Here’s the thrust, these existed and therefore the rest flows. Does Court has any role to determine if these conditions existed. Gov’t position is ‘no.’

My question: What authority do you have?

DOJ: Take Care Clause–That is HIS, Trump’s sole duty to Take Care to execute the law. Exh. 22-1, explains how ICE couldn’t enforce.

Judge: You are saying the president acted on evidence, did he have to?

DOJ: No. Trump could merely reach that because he has sole authority to Take Care Clause. 

Judge: Tries to make it sounds like Trump could just say it and that there is no basis to find it non-justiciable.

DOJ: Counters with SCOTUS precedent. 

Me: Judge is so annnnnoying. DOJ is trying to make an alternative argument and juge won’t let him.

So to boil it down, the judge seems to be resisting the doctrine, which has been in place for nearly 200 years, that it is not the place of the judiciary to question the president’s judgement on this subject.

Finally, we get to Team Newsom:

The cut off text: 

Second half looks   speaks of discretion to President because it says in number ‘he sees fit.’ 

Judge: ‘Whenever’…it President has completed discretion, why not say when President ‘finds’. 

Me: Opps, Judge notes it does the third prong does to show there is discretion where President ‘finds.’

Judge: I find justiciability question interesting. President is limited in his authority. That’s the difference between a president and King George.

Except, as we pointed out, even President Madison was allowed to act with that kind of discretion. Was he a king?





The cut off text:

Judge: If statute says president can appoint when there’s a vacancy, can president merely declare a vacancy. If he finds there’s a rebellion there is a rebellion. I try to distinguish what a monarchy does.

We live in response to a monarchy.

Line-drawing is necessary.

Me: This is ridiculous. If judge wants to reach a decision, he needed to allow DOJ to make alternative argument that facts met but Judge cut him off.

So, she is indicating that the judge is not even letting the DOJ have their full say. As we pointed out in our last post, they demonstrated pretty persuasively that there was in fact a rebellion, as that term is understood in the law, in Los Angeles. They did in large part by using evidence introduced by Newsom’s own lawyers. But Cleveland seems to be indicating that they were cut off from addressing that.

The cut off text:

And president when he evoked the authority, not invoking exception to Posse Act (the Insurrection Act). I don’t understand how I can do anything about the Marines. 

Newsom: We understand Marines will be replacing National Guards. That 700 Marines are made ready that is enough to show injury is certainly impending. 

Judge: Seems to me that circumstances and court orders will dictate how people will behave. So whatever order I issue, I assume will be followed and that might impact conduct in the future. But I have a hard time reaching out saying you can’t do this or that. Seems speculative and a view of future and not what is presently done.

Newsom: There is a PCA (Posse Act) violation as to Guard right now. It is enforcing the law right now as they are federalized. Regardless of whether federalized was lawful it is unlawful under PCA.

Judge: I am prepared to answer whether Guard is properly federalized. 

DOJ: Newsom wants a TRO to go outside of federal property to participate in immigration raids. 22-4 Declaration under orders simply to protect federal property and federal personal) Paragraph 7: Limited to those operation. NOT performing law enforcement or other functions.  What they want to enjoin is leaving federal buildings to participate in ICE raids.

Judge: Strikes me facing issues fully briefed and argued that I must make a decision whether properly federalized.

DOJ: If it is a violating, it is a procedural way, we can send the papers to fix it.

Judge: If it is unauthorized, we can’t overlook. If you start looking at ‘where we go from here’ court becomes almost a party. I have to make sure laws are faithfully executed. (Me: No, that is Trump’s duty.) 

Depends in part on the situation on the ground.





We talked about ‘Posse Comitatus’ in our last post:

[T]he Posse Comitatus Act … is a statute currently codified as 18 U.S. Code § 1385, which states that, unless the Constitution or a statute provides otherwise, the President can’t use the military to carry out law enforcement functions.

The cut off text:

Judge: They are saying they will protect federal officials, but governor is in charge. 

DOJ: Must balance equity. If you are going to enter TRO, make it a Preliminary Injunction and a stay pending an appeal for 48 hours.

Newsom: We don’t have a position on TRO or PI, we don’t object to a PI. We object to a stay pending of appeal, this is ongoing urgency.  Docket 39-1 he claims it is domestic enforcement. 

Judge: I will have an order out very soon, hopefully today.

TRO translates to Temporary Restraining Order. PI means Preliminary Injunction. And we don’t blame Newsom’s team for lacking a preference. The difference is not huge.

Finally, to cap it off, Cleveland writes this:

The cut off text:

My gut is he will do so by saying Trump didn’t did it ‘through’ Newsom because he cut of DOJ from making alternative argument that record supported Trump’s findings. But that conclusion would give Governor a veto power over the President as Commander-in-Chief—something Congress did not intend. If Judge issues an injunction without staying it, the mess will make the burning dumpster look like Monk’s apartment.

So, all the reporting we had done suggesting that this judge was a moderate appears to be mistaken, or perhaps he stops being a moderate when Orange Man Bad is involved. Of course, Breyer might still come to his senses, but that’s not our gut feeling on this. Frankly, even if the judge felt that the procedures were not followed correctly, if we were sitting on the bench we would issue an order requiring the Trump administration to seek that order through Newsom withing 48 hours, and also order Newsom to issue that order when the Trump administration requests it, while still allowing Trump to command the National Guard in the meantime. We would not use that issue as a vehicle to stop Trump from fighting these rioters.

Also, we are partially wondering why the Trump administration is not relying on 10 U.S.C. § 253. We talk about this statute in more detail, here, but it talks about using the ‘militia’ (the national guard) as well as the regular military (including the Space Force!), it doesn’t mention any involvement of the governor, and it can be triggered by a simply conspiracy to obstruct the administration of federal law. 





And in the name of full disclosure, this author actually sent an email to one of the authors listed on the DOJ’s Opposition and in part we raised that exact question. (We also alerted him to their very embarrassing mistake.) We haven’t heard back from him, but given that this is a publicly known email, we are guessing he gets a ton of emails, and he might not have even seen it just yet. And even if he sees it, he might not choose to respond, which we understand.

So, we suspect this judge is about to intrude on Trump’s powers as commander-in-chief, and if he does, then we suspect he will be countermanded very quickly—by the Supreme Court if necessary. And if he is not, Trump might very well decide to take the extreme step of ignoring that ruling. And arguably that would be legal.

Stay tuned.

RELATED: DOJ’s Opposition to Newsom’s Motion for Restraining Order Has an Embarrassing Mistake (And a Deep Dive)

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Editor’s Note: Radical leftist judges are doing everything they can to hamstring President Trump’s agenda to make America great again.

Help us hold these corrupt judges accountable for their unconstitutional rulings. Join Twitchy VIP and use promo code FIGHT to get 60% off your membership.





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