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CAN DONALD TRUMP POLICE THE UNITED STATES?  
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Cristian Farias
August 19, 2025
The New Yorker
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_ In a trial over the legality of the President’s deployment of the
National Guard in Los Angeles, there may be a definitive answer to
where his power ends. _

National Guard soldiers block protestors during an ICE immigration
raid at a nearby cannabis farm on July 10, 2025, near Camarillo,
California., Mario Tama / Getty

 

The Tenth Amendment to the U.S. Constitution is so short and
self-evident that you don’t need a law degree to understand it, or a
judge to explain it to you: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” That
language had real teeth during Donald Trump’s first Presidency, as
states, cities, and localities invoked it to stop his abuse of
immigration laws, of the purse strings that belong to Congress, and of
their own authority over their affairs and general welfare. This fight
against government overreach has continued well into Trump’s second
term. “Here we are again,” William Orrick, a senior
federal-district judge in San Francisco, wrote in a recent opinion
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the Trump Administration from withholding funding that Congress had
already allocated to state and local authorities for policing and
other prerogatives. (He made a similar ruling during the first Trump
Presidency.) The Administration’s actions, Orrick wrote, in April,
“violate the Tenth Amendment because they impose coercive condition
intended to commandeer local officials into enforcing federal
immigration practices and law.”

For the past two months, in a courtroom not far from Orrick’s,
another senior U.S. district judge, Charles Breyer, has been grappling
with whether the Tenth Amendment and federal law provide “a limiting
principle” to a President who wills local problems into national
ones. In June, as Los Angeles residents protested how Immigration and
Customs Enforcement was disrupting people’s lives and work
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Trump’s response was to send in backup from California’s National
Guard, the largest such force in the country. “To the extent that
protests or acts of violence directly inhibit the execution of the
laws, they constitute a form of rebellion against the authority of the
Government of the United States,” a Presidential memorandum to Pete
Hegseth
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the Defense Secretary, said. Governor Gavin Newsom and the state of
California sued almost immediately, leading to the case known as
Newsom v. Trump.

Judge Breyer, the younger brother of the retired Supreme Court Justice
Stephen Breyer, has a problem with the word “rebellion”; he
underlined it in his first opinion
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the case. The word appears in the Constitution five times—four of
them in the Fourteenth Amendment, the centerpiece of Reconstruction
and Black equality after a real rebellion of states that wanted
neither. The other appearance is in Article I, which grants Congress
alone the power to suspend the writ of habeas corpus—the very
mechanism that Stephen Miller and Kristi Noem have claimed grants the
Administration power to detain and disappear people from this country.
The word also shows up in the law that Trump invoked to federalize the
California Guard. “Is it a ‘rebellion’ because the President
says it is a ‘rebellion’?” Breyer asked during the trial for
Newsom v. Trump, which lasted three days and ended last week.

At the outset of the case, and less than a week after Trump’s
deployment of the California National Guard, Breyer had written an
opinion declaring Trump’s actions illegal—“both exceeding the
scope of his statutory authority and violating the Tenth Amendment to
the United States Constitution.” Trump, he wrote, “must therefore
return control of the California National Guard to the Governor of the
State of California forthwith.” Yet almost as quickly as he ruled, a
panel of the U.S. Court of Appeals of the Ninth Circuit, which
included two judges appointed by Trump during his first term, pumped
the brakes on Breyer’s constitutional pronouncement and ruled for
the President on a different ground—namely, that his federalization
of the California National Guard complied with a statute that allows
him to do just that.

Indeed, in Section 12406 of Title 10, which governs the armed forces,
Congress decided to delegate to the President its own constitutional
authority to call on “the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions.” Under this statute, if
the President “is unable with the regular forces to execute the laws
of the United States”—or to quell imminent foreign invasions or
domestic rebellions—he may federalize any one state’s National
Guard to aid him in those efforts. But can the President trigger the
statute whenever he feels like it, and for however long? Rather than
drawing a line in the sand, the appeals court leaned on precedents
establishing that the President remains “the sole and exclusive
judge” of facts on the ground—the precondition for calling in the
military on a state’s own citizens. As the Ninth Circuit explained,
“our review of that decision must be highly deferential.”

_Must be_? If that’s true, then there’s no stopping Trump from
federalizing the National Guard in all fifty states. In the District
of Columbia, where federal law gives the President significant leeway,
Trump has already mobilized the D.C. National Guard, after declaring
an “epidemic of crime in our Nation’s capital.” Newsom v. Trump
matters because the case, even as limited by Trump’s own judges to a
statutory dispute, may yet seal the fate of the delicate compact the
Constitution sets out between the national government, the states, and
the rest of us. Can a President break that compact, without
consequence, usurping police powers that were never his to begin with?

In bench trials, which happen without a jury, judges act as finders of
fact and law. At the beginning of the bench trial in Newsom v. Trump,
Breyer announced that the “single factual issue” before him was
one that the Ninth Circuit did not address, and that California had
also raised in its lawsuit: whether the Trump Administration had
violated the Posse Comitatus Act of 1878. In other words, was there
sufficient evidence that the federal government had relied on the
California National Guard as a “posse,” for the purpose of
executing domestic laws, much as local police would? The Posse
Comitatus Act, last updated in 2021 for reasons that will become
immediately clear, is one sentence: “Whoever, except in cases and
under circumstances expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army, the Navy, the Marine
Corps, the Air Force, or the Space Force as a posse comitatus or
otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.”

Traditionally understood as a ban against standing armies’ engaging
in civilian law enforcement, one of the concerns expressed in the
Declaration of Independence, the Posse Comitatus Act has taken on a
life of its own within the military, becoming embedded in many
policies and practices. Informing basic training, various directives,
and even legal advice, the act serves as a sort of compass guiding
military behavior. Because the act is written as a criminal
prohibition, and only the federal government can prosecute violations
of federal criminal law, the statute poses a few legal hurdles for
Breyer: Can California sue under a statute that only the U.S.
government can enforce? And, since the remedy for violations of this
criminal law is a fine or imprisonment, can you invoke the statute in
a civil suit to _enjoin_ the Administration from the unlawful
domestic deployment of troops? And, finally, didn’t Congress, in
allowing the President to federalize the National Guard “to execute
the laws of the United States,” give the executive branch an
exception from the ban on engaging in general law-enforcement
activities?

These are all legal, not factual, questions that Breyer will have to
resolve in due course. (He has yet to issue a ruling.) But the facts
that he elicited during the trial, some of which unfolded in real
time, may help him reach a conclusion. William Harrington—an Army
deputy chief of staff who wrote reports on the activities of Task
Force 51, the four-thousand-person unit, plus seven hundred Marines,
deployed to the Los Angeles area—testified that the Posse Comitatus
Act was on his mind on June 7th, the day Trump directed Hegseth to
mobilize the National Guard. During a briefing with task-force
leadership that day, Harrington said he brought up the act, and that
everyone in the room understood that it applied, and thus that the
California National Guard, once federalized and deployed, could not
engage in law-enforcement activities.

During the trial, the California attorney general’s office tried to
create, as one _Politico_ reporter put it
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a split-screen moment with the federal takeover playing out in
Washington, D.C. Jane Reilley, the California lawyer examining
Harrington, pulled a question straight from the day’s headlines: Are
you aware that the Secretary of Defense announced the deployment of
National Guard troops in Washington, D.C.? Federal prosecutors
objected loudly, citing irrelevance. But Breyer allowed the question.
After all, part of his job, if he finds that the Posse Comitatus Act
was violated, is to craft injunctive relief—a remedy to prevent
future violations, he explained. And, surely, understanding how the
Administration is using the National Guard in other places would help
the judge with his fact-finding. “No, I was not aware,” Harrington
replied.

Over the government’s objections, a statement from Hegseth from that
same morning, during the deployment of troops in D.C. was played in
open court. “This is nothing new for D.O.D.,” Hegseth said from
the White House briefing room, flanked by Trump, Attorney General Pam
Bondi
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the newly minted top federal prosecutor in the District of Columbia,
the former Fox News personality Jeanine Pirro. “In Los Angeles, we
did the same thing—working with the California National Guard,
working with _ICE_ officers.” (Also admitted into court was a
video of Trump, from the same briefing, suggesting that other cities,
including Baltimore and Oakland, were up next.)

Even more dramatic was the testimony of Major General Scott M.
Sherman, who was in command during the Los Angeles mobilization. In
one episode in July that drew widespread condemnation from Angelenos,
immigration agents, riding in armored vehicles and on horseback,
accompanied by the National Guard, descended on MacArthur Park—an
ostentatious show of force that the Los Angeles _Times_ likened
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“a Hollywood movie.” Sherman confirmed that the scene, code-named
Operation Excalibur, was entirely rehearsed—and that, although it
had originally been planned for Father’s Day weekend, he had
expressed concern that the park would be too crowded, and so it was
moved to July 7th. “We assessed that there could be a large amount
of people in the park, which could quickly overwhelm Border Patrol,”
Sherman testified. Hegseth himself approved the stunt; there have been
no reports of any arrests that day.

One moment during Sherman’s testimony illustrated the rift that
exists between how the military perceives its deployment, and how
immigration agents, who are more closely aligned with Trump’s goals,
perceive theirs. During testimony about the MacArthur Park operation,
Sherman was asked whether Gregory Bovino, a brash Customs and Border
Protection sector chief, questioned Sherman’s loyalty to the United
States because of his raising concerns about timing. The Justice
Department objected, but, once again, it was overruled, with Breyer
suggesting that calling out a leader’s exercise of “military
judgment” as disloyal is entirely relevant to the main question in
the case: whether troops were respecting the civil-military divide
embodied in the Posse Comitatus Act. Once cleared to answer, Sherman
gave a muted yes.

Bovino, for his part, has continued to play for the cameras in
downtown Los Angeles. Last Thursday, he and other federal immigration
agents showed up outside a news conference by Newsom, during which the
governor hoped to lay out a plan to counteract another Trump power
grab—his push for new congressional maps in Texas. Los Angeles’s
mayor, Karen Bass, called this unannounced show of force, not unlike
others that have rattled L.A. communities, “a provocative act”; it
claimed one casualty, an unsuspecting delivery driver whom immigration
authorities arrested at the scene. “We’re glad to be here,”
Bovino told a local television reporter. “We’re not going
anywhere.”

It is hard to divorce the technical legal questions in Newsom v. Trump
from the sights and sounds, all admitted into evidence, confirming
that the President’s commandeering of civilian and military
personnel for immigration enforcement was designed to strike fear in
migrant workers and their communities. Much of the Administration’s
crackdown in California has also been trained on people who simply
look like they might be immigrants, who live and work in areas where
employing immigrants is commonplace, who speak Spanish, or who
congregate where immigrants seek out work. A separate legal battle,
waged by immigrants’-rights advocates and day laborers, now pending
at the Supreme Court, will soon determine whether immigration agents
can be prevented, as they were by one judge last month, from racially
profiling and sweeping up immigrant workers simply going about their
daily lives in seven counties in the federal district that includes
Los Angeles.

Many of those sweeps haven’t required the assistance of the
California Guard. But the state’s case against the Trump
Administration rests on three discrete operations, each of them more
than fifty miles from Los Angeles, where the Guard was involved, and
where they were not merely providing “protective activities” to
agents being stymied from enforcing immigration laws, nor protecting
federal buildings—the original rationale for their mobilization.
Rather, as California argued, they were called on to add to
immigration agents’ numbers—to act as a “force multiplier” in
situations where the threat to federal personnel or property was
minimal or nonexistent, and where the targets, much as they were in
the city proper, were workers who posed no risk of harm to anyone.

In all three operations, in the localities of Mecca, Camarillo, and
Carpinteria, hundreds of troops were called in to support D.H.S.
agents conducting highly targeted, planned raids aimed at cannabis
farms and farmworkers. These raids had all the hallmarks of a
law-enforcement operation: federal agents had obtained search warrants
to enter the premises; troops set up security perimeters around the
sites and on public roads, which had the effect of preventing the
movement of civilian traffic; and hundreds of migrant workers, some of
whom left children behind, were arrested. (One farmworker, Jaime
Alanís García, died after he fell from the roof of a greenhouse at
one of the raided farms.) Sherman, who, during the trial for Newsom v.
Trump, was shown images taken during one of the operations, could not
explain what his own service members were doing. At times, he and
other government witnesses could hardly tell U.S. troops apart from
federal law enforcement.

After California rested its case, on the first day of trial, Sherman
returned to the stand on the second day, this time as the Justice
Department’s only witness, largely to clean up his prior testimony
and to try to persuade Judge Breyer that Task Force 51 was doing
everything by the book. Sherman may have muddied things more when he
testified that his force operated under a “constitutional
exception” allowing them to undertake run-of-the-mill
law-enforcement activities—which would violate the Posse Comitatus
Act—because Trump’s federalization order assumes that the
President can’t enforce the law in the usual way, and thus needs the
military to help him do it. “That’s the legal advice I
received,” Sherman said.

On the second and third days of trial, devoted largely to the thorny
legal questions still weighing on Breyer, the two sides made their
final pitches, offering competing visions of the limits that the law
places on Presidential authority, and whether judges can do anything
about it. One thing that made Breyer concerned was the absence of a
prior case offering guidance on how he should rule. “To use the
absence of a case offering this exact relief would be a miscarriage of
justice, because it is in fact the federal government who is engaged
in unprecedented conduct,” Meghan Strong, of the California attorney
general’s office, said. Right before the trial, Hegseth had extended
the L.A. deployment, which now consists of only about three hundred
troops, for another ninety days. Then there’s the manufactured
emergency in D.C., to which the Republican-led states of West
Virginia, Ohio, and South Carolina have announced they will be lending
their own National Guards. Will these “emergencies” ever end?

“Once you have force in place, and maybe legitimately do so, and the
threat to give rise to that force in that place subsides, there’s no
longer a serious concern,” Breyer said near the end of the trial.
“How does one look at this national police force, which goes out of
where the threat was and starts executing other laws?” He added:
“It’s the absence of any limits to a national police force.
That’s what I’m sitting here trying to figure out.” ♦

CRISTIAN FARIAS
[[link removed]], a legal
journalist, writes about courts and the law for Vanity Fair.

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* Donald Trump
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* policing
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* National Guard
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* Los Angeles
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* Constitution
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* Tenth Amendment
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* Federal Courts;
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