Federal judge signals partial win for Newsom in National Guard dispute

A federal judge in San Francisco appeared poised Thursday to grant Gov. Gavin Newsom a partial victory in his legal challenge to President Donald Trump's federalization of the California National Guard, but Senior U.S. District Judge Charles R. Breyer also indicated he would steer clear of legal questions surrounding deployment of the Marines in Los Angeles.

Breyer promised a ruling by the end of the day Thursday following an afternoon hearing, and Assistant Attorney General Brett A. Shumate - fearing an adverse decision - asked him to issue a preliminary injunction and to stay it for 48 hours while the Justice Department filed an appeal.

Deputy Attorney General Nicholas R. Green opposed a stay. "There's an ongoing, urgent situation in Los Angeles," he said. The judge offered no hint about what he would do about Shumate's request.

No ruling was issued as of press time. Newsom et al. v. Trump et al., 25-cv-04870 (N.D. Cal., filed June 9, 2025).

If Breyer rules against the Trump administration on any grounds and does not grant a 48-hour stay, U.S. Department of Justice attorneys can be expected to move quickly to seek one at the 9th U.S. Circuit Court of Appeals - where a three-judge panel would decide.

Newsom and California Attorney General Rob Bonta might file their own appeal, depending on the outcome, and the composition of the 9th Circuit motions panel - which is drawn by lot from its 29 active judges - could be significant.

But as with the many lawsuits filed against the Trump administration, it is a certainty that the legal challenge will ultimately be resolved by the U.S. Supreme Court on its emergency docket.

Breyer, an appointee of President Bill Clinton and the 83-year-old younger brother of former U.S. Supreme Court Justice Stephen G. Breyer, did most of the talking during the 69-minute hearing, grilling Shumate about whether Trump's invocation of a section of a 1903 federal law, 10 U.S.C. § 12406, can be reviewed by a judge at all.

Shumate said no. "Our position is that it's not subject to judicial review," he told Breyer.

The judge, however, did not believe the statute left the judicial branch out.

"If it were read the way the government urges me to read it, [the statute] would have been rewritten entirely," Breyer said. "You would have put the [president's] discretion at the beginning."

The law states that the president may call members of state National Guards into federal service if the U.S. is invaded by a foreign nation, there is a rebellion or danger of rebellion against the authority of the federal government, or if the president is unable to execute federal laws with regular forces.

Shumate cited the statute's language concerning the rebellion or danger of rebellion, as well as the government's inability to execute federal laws with regular forces, to support its argument against the state's lawsuit.

Breyer, however, said "the president is of course limited to his authority. That's the difference between a constitutional government and King George. ... This country was founded in response to a monarchy and the Constitution is a document of limitations."

"It's not that a leader can simply say something and then it becomes it," the judge added. "It's a question of a president or a governor following the law as set forth in both the Constitution and statutes."

Breyer also said he was puzzled about why the order had been sent directly to the California National Guard's adjutant general, a Newsom appointee, instead of the governor himself.

Shumate said that didn't matter, because even though the request is supposed to go through Newsom, the governor has "no discretion. There's no consultation requirement, no pre-approval requirement."

Green said Trump's authority is not a core Article II power that is unreviewable by the courts.

"The version of executive power to police civilian communities that the government is advancing is breathtaking in scope," he told the judge. "They suggest there are no guardrails."

But Breyer appeared to balk at blocking Trump from deploying the Marines, even while Green said he understood that 140 Marines would be deployed in Los Angeles within 24 hours to replace National Guard members.

"There's no evidence before me that the Marines have actually done these things that violate the Posse Comitatus Act [of 1878]," which generally prohibits the use of the military for domestic law enforcement, Breyer said.

"I just sort of don't think it's my business," the judge added. "It seems somewhat speculative."

Christopher D. Edelman, senior counsel with the U.S. Department of Justice, argued in the Trump administration's brief that the federalized National Guard was not in Los Angeles to engage in law enforcement, but to protect U.S. Immigration and Customs Enforcement agents.

U.S. Secretary of Homeland Security Kristi Noem, asserting that ICE agents have been assaulted and attacked with bottles and hammers, took aim at Newsom and Los Angeles Mayor Karen Bass during a Thursday morning press conference.

"We are not going away," she said. "We are staying here to liberate the city from the socialists and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into this city."

Noem's press conference was interrupted by U.S. Sen. Alex Padilla, D-CA, who tried to ask her a question but was pushed out of the room by federal agents and handcuffed. A Padilla spokesperson said in a statement that he was not detained.

California Attorney General Rob Bonta's decision to file the complaint in San Francisco - and not Los Angeles - all but guaranteed that the case would be assigned to a Democratic appointee, because all but one judge in the Northern District of California was picked by a Democratic president.

There are more judges in the Central District of California, located in Los Angeles, who were nominated by Republican presidents.