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A federal judge pressed the Department of Justice during a hearing Thursday about whether President Donald Trump followed the law when he activated the National Guard in response to recent anti-immigration enforcement protests and riots in Los Angeles County, California.
Judge Charles Breyer, a Clinton appointee, repeatedly drew comparisons to a monarchy as he weighed Democratic Gov. Gavin Newsom’s request that the court temporarily restrict Trump’s power to use the National Guard.
Breyer said the United States is not ruled by a king and that presidential power has limitations.
“We’re talking about the president exercising his authority, and the president is, of course, limited to his authority,” Breyer said. “That’s the difference between a constitutional government and King George. It’s not that a leader can simply say something, and it becomes it.”
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Breyer, who is the brother of retired liberal Supreme Court Justice Stephen Breyer, did not make any decisions from the bench during the hearing and did not signal how he would rule. He indicated that a decision would come as soon as Thursday evening.
The judge’s remarks came as he weighed arguments presented by DOJ Civil Division head Brett Shumate. Shumate argued the courts do not even have authority to review Trump’s invocation of Title 10, a set of laws that lays out what mechanisms a president can use to federalize National Guard members.
The National Guard is a state-based military force under the dual control of presidents and governors. Typically, a president activates the National Guard with a governor’s consent.
But, as demonstrated in the courtroom in Northern California on Thursday, the law does not make clear that a governor’s permission is necessary.
The Title 10 law that Trump and Secretary of Defense Pete Hegseth relied on to federalize thousands of National Guard members says presidents must go “through” a governor. A memorandum Hegseth sent out deploying the soldiers states that he went through Newsom, a point Breyer questioned.
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“I’m trying to figure out how something is ‘through’ somebody if, in fact, you didn’t give it to him,” Breyer said.
Newsom vehemently opposed Trump sending the military into his state, saying the president’s show of force exacerbated the fledgling riots in parts of Los Angeles and caused them to worsen.
After the president’s proclamation, protests and riots intensified. Demonstrators set several self-driving cars on fire, looted stores, and continued assaulting law enforcement officers, including by pelting officers with concrete and other hard objects.
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California’s attorney general filed a lawsuit over Trump’s actions, pitting the president against Newsom, one of the most prominent Democrats in the country and a possible 2028 presidential contender.
Attorneys for Newsom argued in a complaint that Trump and Hegseth exceeded their authority, violated Title 10, and violated the Administrative Procedure Act.
They “unlawfully bypassed the Governor of California,” the attorneys wrote. In addition to possibly requiring consent from a governor, Title 10 also requires that there be a rebellion or similar type of scenario that is underway.
“At no point in the past three days has there been a rebellion or an insurrection,” the attorneys wrote. “Nor have these protests risen to the level of protests or riots that Los Angeles and other major cities have seen at points in the past, including in recent years.”
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