OPINION — “On the June 7, [2025] briefing, [Army North’s Contingency Command Post Deputy Chief of Staff] Mr. [William] Harrington said — based mostly on his expertise and coaching inside the Division of Protection — ‘if any Nationwide Guard troops have been federalized as a part of the deployment [to Los Angeles], they might lose the flexibility to conduct legislation enforcement actions due to the Posse Comitatus Act.’…Amongst different directions, Process Drive 51[the California National Guard contingent of] troops have been instructed that they might not impede car or pedestrian site visitors or block public roads, as a result of these are legislation enforcement capabilities.”
That’s an excerpt from the 52-page opinion of United States District Choose Charles R. Breyer in a case introduced by California Governor Gavin Newsom, who objected to the Trump administration’s federalization of parts of his state’s Nationwide Guard. The opinion immediately affected solely 300 California Nationwide Guard troops remaining on responsibility, from the 4,000 initially known as up.
On Wednesday, the Trump administration filed a discover to attraction the choice with the ninth U.S. Court docket of Appeals.
However Breyer’s opinion may have a nationwide affect if it survives appeals. That’s as a result of Trump’s authentic memorandum that known as the California Nationwide Guard into federal service by no means particularly talked about Los Angeles or California. On the contrary, as Breyer himself identified, “it instructed the Secretary of Protection ‘to coordinate with the Governors of the States and the Nationwide Guard Bureau in figuring out and ordering into Federal service the suitable members and items of the Nationwide Guard.’”
President Trump up to now has threatened to name up Nationwide Guard troops in Illinois, Maryland and different states with excessive crime charges and Democratic governors, however after Breyer’s opinion, Trump could also be hesitating.
On Wednesday, throughout a gathering with Polish President Karol Nawrocki, Trump stated, “Can we go to Chicago? Can we go to a spot like New Orleans, the place we now have an excellent [Republican] governor, Jeff Landry, who needs us to return in and straighten out a really good part of this nation that’s change into fairly, , fairly robust, fairly unhealthy.”
I’ll focus on under one other authorized difficulty concerned within the case, however first I wish to have a look at the Posse Comitatus violations talked about above.
In line with Breyer’s opinion, “Main Normal Scott Sherman, the deputy commanding common help for U.S. Military North and commander of Process Drive 51, oversaw the coaching of Process Drive 51. He testified [during Breyer’s court hearing] that his quantity two precedence (after troops’ welfare and security) was ‘to make sure that they adopted the standing guidelines on using pressure precisely as was written.’ Accordingly, he ensured that Process Drive 51 troops knew that ‘they weren’t allowed to do any legislation enforcement actions. Regulation enforcement needed to do it themselves.’”
The Process Drive 51 coaching slide proven Process Drive 51 troops specified 12 legislation enforcement capabilities prohibited by the Posse Comitatus Act however, in keeping with Breyer’s presentation of the information, the troops “have been orally instructed that the 4 capabilities listed in purple—safety patrols, site visitors management, crowd management, and riot management—have been topic to a so-called constitutional exception to the Posse Comitatus Act.”
This latter oral instruction, Breyer wrote, got here “all the way in which from the highest of [the Department of Defense] all the way down to Process Drive 51,” in keeping with courtroom testimony.
Though the latter instruction was initially not put in writing, Protection Secretary Pete Hegseth did so in a memorandum issued June 23, [2025] that defined the scope of the alleged constitutional exception to the Posse Comitatus Act.
Hegseth’s memorandum directed that “Process Drive 51…might take cheap measures to stop the destruction or defacement of Federal Authorities property together with crowd management, non permanent detention, cursory search (resembling safety-related searches for weapons incident to non permanent detention), measures to make sure the protection of individuals on the property, and the institution of safety perimeters moderately vital to guard the property,” in keeping with Breyer’s opinion.
Breyer additionally wrote that the June 23, Hegseth memo, in a second bullet level, asserted “that wherever federal personnel go, Process Drive 51 troops can accompany them and set up perimeter management, interact in crowd management, and in any other case carry out any capabilities ‘vital to make sure the execution of Federal capabilities and the protection of Federal personnel.’”
The Cipher Temporary brings expert-level context to nationwide and international safety tales. It’s by no means been extra vital to grasp what’s occurring on the earth. Improve your entry to unique content material by turning into a subscriber.
The June 23 memo jogged my memory that this was not the primary time I had heard that Hegseth appeared to inform troops they didn’t must comply with authorized recommendation.
Throughout a November 2024 interview with podcaster Shawn Ryan, Hegseth described that when he was an Military officer in Iraq in 2005, his platoon bought a briefing from a army lawyer in Baghdad on the principles of engagement. Hegseth stated the lawyer instructed him and his troops that they might not shoot somebody carrying a rocket-propelled grenade until it was pointed at them.
Hegseth then instructed Ryan, “I bear in mind strolling out of that briefing, pulling my platoon collectively and being like, ‘Guys, we’re not doing that. , like for those who see an enemy…interact earlier than he’s capable of level his weapon at you and shoot, we’re going to have your again.’”
Breyer’s opinion additionally listed instances when he believed the California Guard violated Posse Comitatus saying, “The report is replete with proof that Process Drive 51 executed home legislation in these prohibited methods. Process Drive 51 arrange site visitors blockades on roads at a residential enforcement operation in Lengthy Seashore, as a part of Operation Excalibur at MacArthur Park.”
Breyer stated, “Operation Excalibur concerned federal legislation enforcement officers marching throughout MacArthur Park whereas Process Drive 51 remained stationed on the skin of the park in army autos—Humvees and tactical autos—together with at two site visitors management factors to stop vehicular site visitors alongside a stretch of Wilshire Boulevard.”
Breyer additionally identified, “Regardless of the danger related to Operation Excalibur and the quite a few rehearsals, DHS [the Department of Homeland Security which ran Operation Excalibur] deliberate to present LAPD [Los Angeles Police Department] solely two hours’ discover of the operation.” Breyer stated that illustrated Trump administration officers “lack of cooperation with their state and native counterparts [which] raises purple flags,” and highlighted “the shortage of any displaying by Defendants [Trump officials] that state and native officers have been unable or unwilling to execute the legal guidelines.”
Past the factual violations of the Posse Comitatus Act, in keeping with Breyer’s opinion, Trump officers argued that very same Act, which authorizes the federalization of Nationwide Guard items may very well be utilized “at any time when… the President is unable with the common forces to execute the legal guidelines of america.”
I ought to word right here that the police energy is the quintessential energy that the Structure reserves to the states. Native and state police are among the many “common forces to execute the legal guidelines” referred to above.
Nevertheless, the Trump officers’ attorneys argued, “The [Posse Comitatus] Act doesn’t even apply to the federalized Nationwide Guard,” as a result of the Structure’s so-called “Take Care” clause beneath Article II, Part 3 states, “he [the President] shall take Care that the Legal guidelines be faithfully executed.”
Breyer, in his opinion, identified, “the Court docket [Breyer] is unaware of any particular person—authorities lawyer, army or civilian official, courtroom, or commentator—who has made this argument aside from Defendants’ [Trump officials’] attorneys on this case.”
Breyer added that such an interpretation “would characterize a marked shift within the steadiness of energy between the Govt and the Legislature,” including it “would create a loophole within the Posse Comitatus Act that might swallow your complete Act…[and] would place no significant guardrails on the federalization and use of Nationwide Guard troops.”
“If the President needs to keep away from the Act’s restrictions,” Breyer stated, “he should invoke a legitimate exception…together with its requisite displaying that state and native legislation enforcement are unable or unwilling to behave.”
Want a every day dose of actuality on nationwide and international safety points? Subscriber to The Cipher Temporary’s Nightcap publication, delivering knowledgeable insights on right this moment’s occasions – proper to your inbox. Join free right this moment.
In concluding his opinion, Breyer wrote that Trump officers “will not be required to withdraw the 300 Nationwide Guard troops at the moment stationed in Los Angeles, nor are they barred from utilizing troops in step with the Posse Comitatus Act…Thus, for instance, federal troops can proceed to guard federal property in a fashion in step with the Posse Comitatus Act.”
However Breyer ordered that the remaining Guard troops couldn’t interact in “arrests, apprehensions, searches, seizures, safety patrols, site visitors management, crowd management, riot management, proof assortment, interrogation, or appearing as informants, until and till Defendants fulfill the necessities of a legitimate constitutional or statutory exception, as outlined herein, to the Posse Comitatus Act.”
As famous above, Trump officers have appealed Breyer’s opinion to the ninth Circuit Court docket of Appeals. On Thursday, a ninth Circuit three-judge panel froze the scenario till it may have a courtroom session and listen to arguments in larger element.
This seems to be one other scenario – right here the President’s use of federalized Nationwide Guard troops — the place a Trump try and broaden Presidential energy could also be headed to the Supreme Court docket.
The Cipher Temporary is dedicated to publishing a spread of views on nationwide safety points submitted by deeply skilled nationwide safety professionals.
Opinions expressed are these of the writer and don’t characterize the views or opinions of The Cipher Temporary.
Have a perspective to share based mostly in your expertise within the nationwide safety area? Ship it to Editor@thecipherbrief.com for publication consideration.
Learn extra expert-driven nationwide safety insights, perspective and evaluation in The Cipher Temporary
