U.S. District Judge Charles Breyer’s recent actions in the ongoing legal fight between California Governor Gavin Newsom and President Donald Trump offer yet another example of how parts of the federal judiciary are stretching the boundaries of both law and constitutional authority to obstruct executive action—particularly when that executive is Donald Trump.
After a three-judge panel from the Ninth Circuit Court of Appeals promptly rejected Breyer’s earlier temporary restraining order (TRO) blocking Trump’s federalization of the California National Guard, the matter should have ended there. Newsom had sued after President Trump invoked 10 U.S. Code § 12406, a law that explicitly permits the president to call state National Guard units into federal service in times of rebellion or when enforcement of federal law becomes impracticable through judicial means.
The Ninth Circuit did not mince words in dismissing the TRO. In fact, the panel pointed out that Newsom had never even alleged that National Guard troops were being used in violation of the Posse Comitatus Act—a post-Reconstruction statute that prohibits using active-duty military for domestic law enforcement, except where explicitly authorized by Congress.
Yet Judge Breyer has chosen not to accept the appellate court’s decision. Instead, in an extraordinary move, he has reopened the case by demanding both sides submit new legal briefings—this time on a question that wasn’t raised in the lawsuit and, according to the Ninth Circuit, was already conceded by the plaintiffs: whether Trump’s use of the National Guard in California violates the Posse Comitatus Act.
This is not a legal reset. It’s a judicial end-run.
The law invoked by President Trump expressly authorizes the use of the military to “enforce the laws” in circumstances where rebellion or obstruction makes traditional enforcement impossible. The Guard was deployed to protect federal facilities, personnel, and operations in Los Angeles—activities squarely within the bounds of federal authority. No evidence has been presented to suggest the Guard was involved in unlawful civilian law enforcement.
Yet Breyer is now laying the groundwork to reassert judicial control by reframing the case with a newly manufactured controversy. Legal analysts, including The Federalist’s Margot Cleveland, believe the judge is stalling deliberately to find a new basis for a second injunction—one crafted to be more insulated from appellate reversal by inserting “factual findings” that muddy the legal waters.
This tactic is not new. Across the country, district judges have increasingly assumed de facto policymaking roles, using creative interpretations and procedural maneuvers to block executive action. These include nationwide injunctions issued from obscure jurisdictions, invented “rights” in immigration cases, and now, a refusal to accept appellate court rulings.
At its core, this is not a debate over legal nuances. It’s a power struggle—between a duly elected president operating under clearly defined Article II powers and a judiciary that is increasingly willing to supplant constitutional roles with ideological preferences.
By ignoring the Ninth Circuit’s rebuke and insisting on resurrecting an issue the plaintiffs themselves abandoned, Judge Breyer is not engaging in judicial review. He is engaging in judicial resistance.
If this pattern continues unchecked, it invites a constitutional confrontation. The president, vested by the Constitution with the authority to execute federal law and maintain national security, cannot be held hostage by a judiciary that rewrites complaints and invents new obstacles after the fact.
