SPANK, SPANK, SPANK!! COURT ISSUES INJUNCTION REQUIRING TRUMP TO DEFEDERALIZE AND RETURN CALIFORNIA NATIONAL GUARD TO CALIFORNIA’S CONTROL!
When the *very first* sentence in an order is “The Founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one,” you know that, to paraphrase that that old Smucker’s commercial, it’s got to be good.
(Anyone else here remember that SNL skit take-off on that Smucker’s commercial?)
In a 35-page opinion and order (included for Notes from the Front members) issuing a preliminary injunction against Trump and his henchministration, and ordering them to return the California National Guard troops to Governor Newsom’s control, Judge Charles Breyer (brother of Supreme Court Justice Stephen Breyer) didn’t just spank the Defendants, he pulled down their pants, bent them over his judicial knee, and used a wooden paddle.
Here’s just the first paragraph:
“The Founders designed our government to be a system of checks and balances. Defendants, however, make clear that the only check they want is a blank one. Six months after they first federalized the California National Guard, Defendants still retain control of approximately 300 Guardsmen, despite no evidence that execution of federal law is impeded in any way—let alone significantly. What’s more, Defendants have sent California Guardsmen into other states, effectively creating a national police force made up of state troops. In response to Plaintiffs’ motion to enjoin this conduct, Defendants take the position that, after a valid initial federalization, all subsequent re-federalizations are completely, and forever, unreviewable by the courts. Defendants’ position is contrary to law. Accordingly, the Court ENJOINS Defendants’ federalization of California National Guard troops.”
Now remember, up until now the Courts had blocked the *deployment* of the National Guard troops, but had let the federalization remain. But true to form, when you give Trump an inch, he’ll grab it by the (expletive deleted).
Judge Breyer provides a most excellent point-to-point roadmap of all of the various shenanigans that Trump has pulled with all of the various National Guard deployments across several states, not just in California, but in Oregon and Illinois as well.
After explaining the facts and procedural history, Judge Breyer turns to Trump’s claims that the law, specifically 10 U.S. Code § 12406, which deals with calling up the National Guard, permits him to call up the National Guard of any state to repel an invasion or to suppress a rebellion. The orders federalizing the National Guard, said Trump, were permitted under §12406.
Responded Judge Breyer:
“Defendants nevertheless attempt to circumvent the scope of Section 12406 by characterizing the Orders as extensions of federalization, which they argue are outside the statute’s reach. Opp’n at 4 (“Congress decided against subjecting the continuation of a mission to further regulation by Section 12406.”). Indeed, at the motion hearing, Defendants confirmed their position that, after an initial federalization, all extensions of federalization orders are utterly unreviewable, forever.”
To be clear, Trump was saying that a *Federal court* could *not* review his orders, like, forever.
Judge Breyer goes on:
“That is shocking. Adopting Defendants’ interpretation of Section 12406 would permit a president to create a perpetual police force comprised of state troops, so long as they were first federalized lawfully. Such a scenario would validate the Founders’ “widespread fear [of] a national standing Army,” which they believed “posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Defendants’ argument for a president to hold unchecked power to control state troops would wholly upend the federalism that is at the heart of our system of government.”
Well, I mean..yeah. Isn’t that what Trump is aiming for?
And we’re only up to page 12! Not even halfway through the spanking!
The thing is, the 9th Circuit had *already* rejected the notion that a president’s actions under §12406 are completely unreviewable. In fact, this very case had been returned to the District Court *from* the 9th Circuit Court of Appeals after the 9th *specifically* had rejected that argument. And hey, what the heck, I’m throwing that decision in for Notes from the Front members too.
You’ll also note an example of something that I have mentioned many times: court decisions often turn on the definition of a single word or term. People don’t always understand why lawyers are so damned picky when it comes to language – we choose our words *very*carefully. Because words matter. That’s also why many legal documents seem impenetrable to the lay person (and why I make a point of explaining things in plain English).
A perfect example of this is contained in this order. There is an *entire section* on the definition of “is unable”.
Also, you will see the abbreviation “Opp’n” throughout the order following a quote; that means that the quote is from the ‘Opposition’, in other words from the Trump administration.
The order ends with:
“For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for a preliminary injunction.
– 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.
– The Court STAYS this order until noon on Monday, December 15, 2025.
– Plaintiffs are ORDERED to post a nominal bond of $100 within 24 hours.
The bond shall be filed in the Clerk’s Office and be deposited into the registry of the Court. If said bond is not posted by the aforementioned date and time, this Order shall be dissolved.”
You may be wondering why they are only enjoined temporarily instead of permanently, and that is addressed in a final footnote, which says:
“Plaintiffs asked the Court at the motion hearing to enjoin any future federalizations based on the same circumstances. In light of the deference owed the President’s determinations under Section 12406 and the Court’s recognition that circumstances are always changing, the Court DENIES this request. Plaintiffs may return to this Court to challenge any future federalization order that they believe violates the law.”
Notes from the Front members: the spanki…er..order is in your inbox, along with the 9th Circuit Court of Appeals opinion which held that a president’s decision bloody well *is* reviewable, and which returned the case to the District Court for adjudication consistent with that Court of Appeals’ holding.
To protect myself I don’t publicly share documents I find, I make them available privately to Notes from the Front members. Sure some of them are public, and you could probably find those public ones yourself if you wanted to spend the hours that I do looking for them, but then you wouldn’t get the explanations and insights based on decades of law practice and as a law professor, nor the snark that I inject into those explanations. ;~) And honestly, $5 a month is less than you would pay for a minute of lawyer time anywhere else. You can join below for immediate access to all of the documents, our private chat, etc.. – it’s $5 a month and it’s fine to join and then cancel if you only want certain documents.
Join and get the documents here: https://annepmitchell.substack.com/p/spank-spank-spank-court-issues-injunction
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