But Judge Charles Breyer also suggested he was unlikely at this point to restrict the use of active-duty Marines in California.
A federal judge on Thursday expressed deep skepticism over the Trump administration’s mobilization of California National Guard troops to support immigration enforcement against protesters in Los Angeles this week, signaling that he would decide “very soon” whether to restrict the troops’ use.
But in evaluating California’s request for a temporary restraining order against the federal government, the judge, Charles Breyer of the Federal District Court in San Francisco, also signaled that he was unlikely to limit President Trump’s use of active-duty Marines because they have not yet deployed to the streets of Los Angeles. He said that if they did head to the city, it might raise a problem under a 19th-century law, the Posse Comitatus Act, but he did not think it was appropriate to rule on something that has not happened yet.
“I don’t understand how I’m supposed to do anything with the Marines, to tell you the truth,” the judge said, later adding, “I just sort of don’t think that’s my business.”
Judge Breyer, who was nominated by President Bill Clinton in 1997, opened the hearing with a heavy focus on whether the National Guard had been improperly activated. The statute President Trump cited as the authority for his move says that such orders must go “through” governors, but Defense Secretary Pete Hegseth instead sent the directive to the general who oversees the Guard, bypassing Gov. Gavin Newsom of California.
Through the first hour of court proceedings, Mr. Breyer, sporting a light-blue bow-tie, seemed skeptical of the Trump administration’s arguments. He interrupted the Justice Department’s lawyer repeatedly and at one point waved a small copy of the Constitution in the air. Some of his pointed replies drew laughs from the packed courtroom of more than 100 people.
Though the state of California has for now requested an order limiting the military to guarding federal buildings, it is also making a broader argument that Mr. Trump has far exceeded his authority.
