California Constitution Center Executive Director David A. Carrillo ’95 and Senior Research Fellow Brandon V. Stracener wrote amicus curiae briefs supporting Gov. Gavin Newsom’s lawsuit against the Trump administration seeking a restraining order to return control of the state’s National Guard to the governor.
Trump bypassed Newsom and mobilized the California National Guard in response to protests in parts of Los Angeles over raids by U.S. Immigration and Customs Enforcement agents. Newsom immediately filed suit in federal court, asking to curb the troops’ actions and questioning whether Trump has the power to direct National Guard troops and U.S. Marines without the state’s consent.
U.S. District Judge Charles R. Breyer ’66, who is presiding over the case, granted the state’s request for a temporary restraining order. The Trump administration then asked the U.S. Court of Appeals for the Ninth Circuit to stay Breyer’s order, which a three-judge panel stayed until it can issue its own ruling. Carrillo and Stracener filed a second amicus brief with the appeals court.
Carrillo and Stracener’s brief to the district court is simple and direct: “State militias can only be federalized under express statutory conditions,” they write. “Those conditions are unmet here, so California’s militia was unlawfully federalized.”
Even if the statutory conditions were met, they argue, the authorizing statutes are unconstitutional because they violate the Tenth Amendment’s anti-commandeering principle, which forbids seizing state assets to enforce a federal policy. And even if federal statutory law can be so used, using a state militia for domestic law enforcement violates the Posse Comitatus Act.
“This Court should hold that the president’s order federalizing California’s militia is unlawful,” Carrillo and Stracener write.