Federal Courts Just Made It Easier to Deploy Military Against Protesters
This week, a federal appeals court allowed President Trump to maintain control of thousands of federal troops on the streets of Los Angeles, overriding a lower court judge who had declared the military deployment both illegal and unconstitutional. The decision marks a significant shift in the balance between federal and state authority, with implications that extend far beyond California's borders.
What Happened: Appeals Court Rules Against Plain Text of Federal Law
The 9th Circuit Court of Appeals formally rejected California's constitutional challenge to Trump's federalization of National Guard troops, overturning U.S. District Judge Charles Breyer's June 12th ruling that had declared Trump's deployment "illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution."
After Trump federalized 4,000 California National Guard troops and deployed 700 Marines to Los Angeles in early June, California sued on constitutional grounds. Judge Breyer's 36-page ruling found Trump had violated federal law by failing to follow required procedures and had breached the Tenth Amendment by seizing state military forces without state consent. The judge ordered Trump to "return control of the California National Guard to the Governor of the State of California forthwith."
The 9th Circuit intervened within hours, first issuing a temporary stay, then making that reversal permanent. The three-judge appeals panel — consisting of two judges nominated by Trump and one appointed by President Biden — concluded that the President lawfully exercised his statutory authority despite acknowledging that Trump did not consult California Gov. Newsom.
This conclusion directly contradicted federal law, which explicitly requires that presidential orders federalizing National Guard troops "shall be issued through the governors of the States." The appeals court ruled that the president acted lawfully while simultaneously violating clear procedural requirements of federal statute.
While the panel rejected the Trump administration's argument that courts have no power to review presidential National Guard decisions, it established that such review must be "highly deferential" to presidential power. The court found that "the president had a legitimate interest in protecting federal employees" based on documented incidents where protesters had thrown "concrete chunks, bottles of liquid and other objects" at federal officers. This standard could justify military deployment at virtually any large protest where violence occurs, circumventing the three specific legal requirements for federalizing the Guard: invasion, rebellion against the federal government, or inability to execute federal laws through normal means.
Why This Isn't Normal: 248 Years of Constitutional Order Challenged
Judge Breyer did exactly what federal judges are supposed to do — he carefully analyzed the law. The fundamental issue is what constitutes a "rebellion" that would justify federal military intervention. Under federal law, a president can only federalize National Guard troops in three specific circumstances: an invasion, a rebellion against the federal government, or when the president cannot execute federal laws through normal means. Trump claimed the Los Angeles protests constituted such a "rebellion."
Breyer found this claim legally baseless. "The protests in Los Angeles fall far short of 'rebellion,'" he wrote, noting that "individuals' right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone." The judge warned: "The idea that protesters can so quickly cross the line between protected conduct and 'rebellion against the authority of the Government of the United States' is untenable and dangerous."
Breyer also found Trump violated the Tenth Amendment, which reserves to states all powers not explicitly granted to the federal government, including primary authority over their own National Guard units. Judge Breyer wrote that "it is not the federal government's place in our constitutional system to take over a state's police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws." When Trump federalized California's Guard without state consent, he violated this fundamental principle of American federalism.
Most importantly, Judge Breyer rejected the Trump administration's argument that presidential military deployment decisions are beyond judicial review. During the hearing, when administration lawyers claimed judges have no power to second-guess the president, Breyer responded: "That's the difference between a constitutional government and King George. It's not that a leader can simply say something and then it becomes it" — directly referencing the British monarchy that the American Revolution rejected.
But here's what's shocking: the appeals court threw all of that constitutional analysis out the window. They simply chose to be deferential to the president instead of enforcing the law. The 9th Circuit's decision represents a dangerous abandonment of judicial duty in favor of presidential power.
Why This Matters: The Infrastructure of Expanding Presidential Power
The 9th Circuit's decision represents the construction of new precedent favoring presidential power. The panel indicated that courts should be highly deferential to the president on military deployment decisions, effectively creating a presumption favoring presidential power over traditional constitutional limits.
Consider the precedent this establishes. Future presidents can now point to this ruling and argue that:
Peaceful protests can be declared threats requiring military response if any violence occurs
Federal military forces can be deployed without state consent
Courts should defer to presidential military judgment
Constitutional protections like the Tenth Amendment yield to claimed federal security needs
The immediate human cost is significant. Judge Breyer noted that the military deployment "not only inflames tensions with protesters, threatening increased hostilities and loss of life, but deprives the state for two months of its own use of thousands of National Guard members" needed for wildfire prevention and other critical state functions.
We now have federal appeals court precedent stating that presidents can deploy military forces domestically with limited judicial oversight, over state objections, based on claims about protecting federal operations. Legal infrastructure for expanded military domestic deployment is being built one court decision at a time.
Lessons from "On Tyranny": How to Respond to This Moment
Timothy Snyder's "On Tyranny: Twenty Lessons from the Twentieth Century" provides a framework for recognizing and responding to authoritarian tactics. The federal deployment of military forces against protesters, combined with judicial endorsement of expanded presidential power, represents exactly the kind of incremental authoritarian advance Snyder warned about.
Note that resistance is guided by Lesson 20: Be as courageous as you can. We are not all positioned to take each of these actions, but consider what you can do given your circumstances.
Lesson 1: Do not obey in advance. When the 9th Circuit panel chose "deference" to presidential power over enforcing clear statutory requirements, they modeled preemptive surrender. Institutions don't need to be directly threatened if they voluntarily abandon their constitutional duties.
How to resist: If you work within institutions, follow proper procedures, enforce existing rules, and maintain institutional integrity even when political pressure suggests otherwise.
Lesson 2: Defend institutions. Judge Breyer defended judicial review by enforcing federal law against presidential overreach. The appeals court abandoned that role by prioritizing political deference over legal obligation.
How to resist: Support judicial independence, press freedom, and legislative oversight. When institutions face political pressure, publicly defend their proper constitutional role. Contact representatives when they fail to exercise oversight responsibilities.
Lesson 6: Be wary of paramilitaries. When 4,000 National Guard troops and 700 Marines patrol American cities, the line between military and police authority blurs. These forces are trained for combat, not civilian interaction, and their presence can escalate conflicts.
How to resist: Document military presence safely from a distance. Do not approach armed military personnel directly. Instead, oppose military domestic deployment through legal and political channels: contact representatives, support organizations challenging these deployments in court, and vote for officials who respect the Posse Comitatus Act.
Lesson 17: Listen for dangerous words. The redefinition of protest as "rebellion" exemplifies how authoritarian language reshapes political reality. When peaceful assembly becomes insurrection, constitutional rights become threats to order.
How to resist: Call out concerning language when you hear it. Distinguish between actual violence and peaceful protest. Refuse to adopt framings that criminalize normal democratic participation. Insist on precise language when discussing civil unrest versus genuine threats.
Take Action
Practice the resistance lessons above - Review the "How to resist" suggestions from Snyder's lessons and implement them as appropriate for your situation and role.
Support resistance organizations - Contribute your time, money, and engagement to organizations defending constitutional rights, judicial independence, and democratic institutions. Consider the ACLU, Brennan Center for Justice, and Protect Democracy.
Contact your elected officials - Write or call your representatives with these key talking points:
Demand clear limits on domestic military deployment: Congress must clarify that presidents cannot federalize National Guard troops without genuine rebellion or invasion, not mere protests
Protect the Tenth Amendment: Federal authorities should not be able to override state control of their National Guard without meeting strict constitutional requirements
Strengthen judicial review: Courts must maintain their constitutional duty to check executive power, not defer to presidential claims about military necessity
