By Maddy Barney

            America’s current domestic affairs are in the hands of one man, Donald J. Trump. The 45th President of the United States quickly instituted an oppressive governance system utilizing executive orders, intimidation, and division.[1] President Trump continues to violate the Constitution and Federal Law in his second administration.[2] One of President Trump’s recent decisions, federalizing the National Guard (“Guard”) and deploying agents into Democratic Party-run cities, motivated a federal court challenge in California.[3] District Court Judge Charles R. Breyer of the Northern District of California recently issued several decisions since California Governor Gavin Newsom sued President Trump in response to the presidential federalization of the California Guard.[4] Judge Breyer’s latest opinion addressed jurisdictional arguments and stated that President Trump exceeded his authority.[5] Such broad sweeps of executive power have not been exercised analogously in years.[6] As more courts raise their gavels to review executive decisions, America’s ideological divides grow.

Historical Context

            This is not the first time a president has directed the Guard.[7] Importantly, the Guard is a “reserve military force,” composed of majority part-time soldiers who meet for training throughout the year while holding civilian jobs.[8] Each state and territory have a Guard.[9] In general,  a current president or state governor may deploy the Guard in response to local emergencies, civil unrest, or public health crises.[10] Conventionally, a president must receive governor authorization before deployment.[11] The last time a president skipped governor authorization for Guard deployment was 1965.[12] President Johnson “invoked his legal authority to deploy the national guard” without the consent of Governor Wallace of Alabama, a prominent segregationist of the time, who opposed the Civil Rights Movement.[13] President Bush faced an opportunity to exceed executive authority when Governor Blanco of Louisiana refused to deploy the Guard following Hurricane Katrina in 2006, but Bush weighed against federalization.[14]

            Trump’s justification for executive overreach does not resemble prior emergency circumstances warranting the Guard. On August 11, 2025, President Trump manufactured a “Crime Emergency” in Washington DC by executive order.[15] The order states: “the city government’s failure to maintain public order and safety has… dire[ly] impact[ed]… the Federal government’s ability to operate efficiently.”[16] But crime is not a sufficient statutory justification for an emergency federalization.[17]

I. The President’s Justification

            Notably, Trump does not justify deployment of the Guard under the Insurrection Act or the Posse Comitatus Act.[18] Rather, a century old law permitting Guard federalization by a president, “if there is a rebellion or danger of rebellion against the . . .US or, if the president is unable with the regular forces to execute the laws . . . .”[19] Trump alleges Guard usurpation is crucial to public safety, “aiding [in] a necessary crackdown on crime, and bolstering immigration enforcement.”[20]

            Statutorily, 10 U.S.C.S. § 12406 does not list “public safety purposes” as a legitimate reason for Guard deployment.[21] Governor Newsom accurately characterized the militarization when he said that President Trump “commandeered 2,000 of our state’s National Guard members to deploy on our streets. Illegally, and for no reason.”[22] President Trump’s critics agree the White House “is trampling on longtime norms against the domestic use of military” and at risk of transforming the Guard “from an apolitical force” to “another arm of the Trump administration.”[23]

II. A Snapshot of the Newsom v. Trump Decisions

            Litigation began when Newsom sought a temporary restraining order (TRO) preventing defendants, President Trump, from federalizing the California Guard.[24] The principal issue was Trump’s procedural violation of 10 U.S.C.S. § 12406, which requires “[o]rders issued through the governor[s]” when federalizing the Guard.[25] Recognizing a clear statutory procedural violation, Judge Breyer granted the TRO and pointed out constitutional violations.[26] Unsurprisingly, defendants appealed the TRO to the 9th circuit.[27] Then, the Court stayed the TRO and affirmed President Trump’s arguably unconstitutional behavior.[28]

            The 9th Circuit determined “the President lawfully exercised his statutory authority.”[29] The Court found that President Trump received governor authorization by “transmittal of the order to the Adjutant General of the California National Guard—who is authorized . . .to ‘issue all orders in the name of the Governor.’”[30] The Court also undermined Judge Breyer’s redress by adding that even if this transmission was insufficient to satisfy the procedural requirement, the district court likely exceeded its scope of relief.[31]

            The 9th Circuit’s reversal of Judge Breyer’s injunctive relief illustrates the ideological divide exacerbated by President Trump’s executive actions. Circuit courts and SCOTUS support the executive.[32] Governor Newsom and Judge Breyer do not stand alone against President Trump’s federalization of the Guard.[33] As more challenges to executive authority arise throughout Trump’s second administration, district judges must take a stand. American law faces a critical point.

III. The Future of Breyer’s Ruling

            Although federal district court judges challenge President Trump’s decisions, higher courts located close to the President continue to support his decisions.[34] SCOTUS directly supports unconstitutional actions as the highest court, effectively sitting in Trump’s back pocket.[35] Without strong checks and balances to restrain branches of government from exceeding their authority, America risks integrated corruption and loss of state sovereignty. Given the rise of “shadow docket rulings” in the Trump administration, SCOTUS is likely to review Newsom v. Trump.[36]

Conclusion

            In conclusion, courts and citizens should be concerned about clear abuses of executive authority. Trump’s federalization of the National Guard, without the consent of state governors, violated the procedural requirements of 10 U.S.C.S. § 12406.[37] The President’s justification for deployment of America’s reserve military force in democratic cities amounts to a manufactured crime emergency based on ideological differences. This is not a system of governance that states should support. Governor Newsom summarized the issue, “[t]his is beyond incompetence — this is [Trump] intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism. We will not let this stand.”[38]

            Moving forward, district court judges should prepare for the oncoming ideological boxing match. It is permissible and encouraged for courts to review executive actions, as the Founders intended.[39] Hopefully, America can return to healthy political discourse and courts will uphold the rule of law despite political pressures.

[1] Donald J. Trump, https://trumpwhitehouse.archives.gov/people/donald-j-trump/ (last visited Sept. 12, 2025); Devon Ombres, The President and Constitutional Violations: Will the Federal Courts Contain the President’s Power Grabs?, Am. Progress (May 20, 2025) https://www.americanprogress.org/article/the-president-and-constitutional-violations-will-the-federal-courts-contain-the-presidents-power-grabs/.

[2] Gary Peters, Undermining Constitutional Limits, HSGAC Minority Staff Rep. (Aug. 2025) www.hsgac.senate.gov.  

[3] Dietrich Knauth & Tom Hals, US Judge blocks Trump from using troops to fight crime in California, Reuters (Sept. 2, 2025) https://www.reuters.com/legal/government/us-judge-blocks-trump-using-troops-fight-crime-california-2025-09-03/.

[4] See generally Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 152784 (N.D. Cal. Sept. 9, 2025) (Prohibiting non-party filings); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 154077 (N.D. Cal. Sept. 9, 2025) (compelling parties to meet and confer regarding contested deposition); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 154078 (N.D. Cal. Sept. 9, 2025) (Prohibiting filing of factually unrelated amicus brief); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 155358 (N.D. Cal. Sept. 9, 2025) (Mandating trial despite preliminary injunction); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 176132 (N.D. Cal. Sept. 9, 2025) (Evaluating jurisdiction over the preliminary injunction); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 170747 (N.D. Cal. Sept. 9, 2025) (granting injunctive relief); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 152783 (N.D. Cal. Sept. 9, 2025) (permitting expedited discovery for plaintiffs and denying defendants request for transfer); Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025) (granting Newsom’s application for a temporary restraining order).

[5] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 176132 (N.D. Cal. Sept. 9, 2025).

[6] Alia Chungtai, When and why has the National Guard been deployed in the US before?, Al Jazeera (Aug. 25, 2025) https://www.aljazeera.com/news/2025/8/25/when-and-why-has-the-national-guard-been-deployed-in-the-us-before.

[7] Id.

[8] Id.

[9] Id. (including Washington, D.C.).

[10] Id.

[11] Id.

[12] Alia Chungtai, When and why has the National Guard been deployed in the US before?, Al Jazeera (Aug. 25, 2025) https://www.aljazeera.com/news/2025/8/25/when-and-why-has-the-national-guard-been-deployed-in-the-us-before; Jeremy W. Peters, Here is what happened when President Johnson bypassed a governor to deploy the National Guard, N.Y. Times (June 8, 2025) https://www.nytimes.com/2025/06/08/us/lbj-national-guard-alabama-1965.html.  

[13] Jeremy W. Peters, Here is what happened when President Johnson bypassed a governor to deploy the National Guard, N.Y. Times (June 8, 2025) https://www.nytimes.com/2025/06/08/us/lbj-national-guard-alabama-1965.html.  

[14] Id.

[15] Exec. Order No. 14333, 90 C.F.R. 39301 (2025).

[16] Id. at § 1.

[17] See 10 U.S.C.S. § 12406 (1-3).

[18] Elizabeth Goitein, Unpacking Trump’s Order Authorizing Domestic Deployment of the Military, Brennan Ctr. for Just. (June 10, 2025) https://www.brennancenter.org/our-work/analysis-opinion/unpacking-trumps-order-authorizing-domestic-deployment-military (stating Trump likely chose this approach because of the familiarity of abuse within the Insurrection Act).

[19] 10 U.S.C.S. § 12406 (1-3); Elizabeth Goitein, Unpacking Trump’s Order Authorizing Domestic Deployment of the Military, Brennan Ctr. for Just. (June 10, 2025) https://www.brennancenter.org/our-work/analysis-opinion/unpacking-trumps-order-authorizing-domestic-deployment-military.  

[20] Rachel Treisman, How Chicago, Baltimore and New Orleans are reacting to Trump’s National Guard Threats, NPR (Sept. 5, 2025) https://www.npr.org/2025/09/05/nx-s1-5530051/trump-national-guard-chicago-baltimore-new-orleans; Johnathan Shorman, Governors split over mobilizing National Guard as Trump seeks more troops, Ala. Beacon (Sept. 10, 2025) https://alaskabeacon.com/2025/09/10/governors-split-over-mobilizing-national-guard-as-trump-seeks-more-troops/.

[21]Alia Chungtai, When and why has the National Guard been deployed in the US before?, Al Jazeera (Aug. 25, 2025) https://www.aljazeera.com/news/2025/8/25/when-and-why-has-the-national-guard-been-deployed-in-the-us-before.

[22] Governor Gavin Newsom, Governor Newsom’s Address to California: Democracy at a Crossroads (June 10, 2025) https://www.gov.ca.gov/2025/06/10/governor-newsoms-address-to-california-democracy-at-a-crossroads/.

[23] Johnathan Shorman, Governors split over mobilizing National Guard as Trump seeks more troops, Ala. Beacon (Sept. 10, 2025) https://alaskabeacon.com/2025/09/10/governors-split-over-mobilizing-national-guard-as-trump-seeks-more-troops/.

[24] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 176132 (N.D. Cal. Sept. 9, 2025).

[25] 10 U.S.C.S. § 12406; Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025); Bonnie Eslinger, Newsom Sues Trump Over ‘Illegal’ National Guard Deployment, Law 360 (June 10, 2025) https://plus.lexis.com/api/permalink/1131f5a5-9a56-40cd-be3e-4f2f49c1c81f/?context=1530671.

[26] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025) (“[Trump’s] actions were illegal—… violating the Tenth Amendment to the United States Constitution.”).

[27] Newsom v. Trump, 141 F.4th 1032, 1040 (9th Cir. 2025).

[28] Id.

[29] Id.

[30] Id. (citing Cal. Mil. & Vet. Code § 163 (Deering 1949)).

[31] Id.

[32] Rachel Abrams, The Rise of the Supreme Court’s So-Called Shadow Docket, The Daily (Sept. 15, 2025) https://www.nytimes.com/2025/09/15/podcasts/the-daily/supreme-court-shadow-docket.html.

[33] Office of the Attorney General for the District of Columbia, Attorney General Schwalb Sues to End Illegal National Guard Deployment in DC (Sept. 4, 2025) https://oag.dc.gov/release/attorney-general-schwalb-sues-end-illegal-national; Governor Gavin Newsom, Governor Newsom suing President Trump and Department of Defense for illegal takeover of CalGuard unit (June 9, 2025) https://www.gov.ca.gov/2025/06/09/governor-newsom-suing-president-trump-and-department-of-defense-for-illegal-takeover-of-calguard-unit/; Johnathon Matitise, Trump says he’ll send National Guard to Memphis, escalating his use of troops in US cities, AP News (Sept. 12, 2025) https://apnews.com/article/trump-memphis-national-guard-federal-intervention-73a7747f02bdf111574cbe9cc59201dd.

[34] See generally Trump v. CASA, 145 S. Ct. 2540 (2025) (prohibiting district court’s grant of a universal injunction addressing birthright citizenship); Trump v. United States, 603 U.S. 593 (2024) (recognizing “some” immunity for the president from criminal prosecution for official acts); Trump v. Wilcox, 145 S. Ct. 1415 (2025) (staying injunction granted by district court in response to firing NLRB workers); Trump v. Boyle, No. 25A11, 2025 U.S. LEXIS 2695 (U.S. July 23, 2025) (affirming Wilcox decision as precedent); Amy Howe, Supreme Court agrees to decide the fate of Trump’s tariffs, SCOTUS Blog (Sept. 9, 2025) https://www.scotusblog.com/2025/09/supreme-court-agrees-to-decide-the-fate-of-trumps-tariffs/.

[35] Melissa Quinn, Supreme Court’s upcoming term could be marked by disputes over Trump policies, CBS News (Sept. 12, 2025)  https://www.cbsnews.com/news/supreme-court-2025-2026-term-trump-policy-disputes/; Elie Mystal, The Supreme Court’s 5 Male Justices are Fully in the Tank for Trump, The Nation (Apr. 25, 2024) https://www.thenation.com/article/archive/supreme-court-trump-immunity-hearing/; Rachel Abrams, The Rise of the Supreme Court’s So-Called Shadow Docket, The Daily (Sept. 15, 2025) https://www.nytimes.com/2025/09/15/podcasts/the-daily/supreme-court-shadow-docket.html.

[36] Rachel Abrams, The Rise of the Supreme Court’s So-Called Shadow Docket, The Daily (Sept. 15, 2025) https://www.nytimes.com/2025/09/15/podcasts/the-daily/supreme-court-shadow-docket.html.

[37] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025).

[38] Governor Gavin Newsom, Governor Newsom suing President Trump and Department of Defense for illegal takeover of CalGuard unit (June 9, 2025) https://www.gov.ca.gov/2025/06/09/governor-newsom-suing-president-trump-and-department-of-defense-for-illegal-takeover-of-calguard-unit/.

[39] Joshua Zeitz, How the Founders Intended to Check the Supreme Court’s Power, Politico (July, 3, 2025) https://www.politico.com/news/magazine/2022/07/03/dont-expand-the-supreme-court-shrink-it-00043863.