President Donald Trump said there was an invasion. Judge Fernando Rodriguez held otherwise. President Donald Trump said there was a rebellion. Judge Charles Breyer held otherwise. Trump’s use of these extreme and hyperbolic words didn’t reflect his usual challenges with the use of the language, but were explicitly chosen to enable him to invoke laws intended for extreme circumstances that gave the president extreme emergency powers. After all, should exigent catastrophe strike, someone has to be able to act to save the nation when immediate action is necessary before all is lost.

Except there was no exigent catastrophe. There was just Trump seizing power.

Through the Militia Act of 1903, Congress authorized the President to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary,” but only if

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States.

The government’s claim of authority was under subdivisions 2 and 3 of the statute, not blaming Venezuela this time, but asserting that if the president says there is a rebellion, then there is a rebellion, and it’s not for judges to say otherwise.

Defendants also challenge whether the Court can even properly evaluate whether
these conditions were met, asserting that § 12406 reserved this determination to the
President’s discretion alone.

Without regard to the definition of “rebellion,” or the existence of any facts to support the occurrence of a “rebellion,” the government argued that it was entirely left to Trump’s discretion.

Indeed, at the hearing Defendants contended that the President could invoke § 12406 on no evidence whatsoever and remain immune from judicial review. And to be sure, when the “executive possesses a constitutional or legal discretion, … their acts are only politically examinable.”

Judge Breyer rejected this contention, finding that there must first be a “rebellion” before the president can invoke a rebellion to seize power over a state National Guard, and it was the duty of the judiciary to determine whether the prerequisites to the invocation of § 12406 existed.

Between the unique concerns raised by federal military intrusion into civilian affairs and the fact that federal officials are not uniquely positioned to ascertain what is happening on the ground (as compared to, say, state and local officials), the Court is not convinced that the judiciary cannot question presidential assertions about domestic activities leading to military action.

The court went on to define “rebellion,” based upon contemporary dictionary sources from the time the law was enacted.

From there, the Court observes that the dictionary definitions from the turn of the century share several key characteristics. First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.

Based upon this definition, Judge Breyer found that there was no rebellion happening in Los Angeles.

Violence is necessary for a rebellion, but it is not sufficient. Even accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are “armed” in a 1903 sense—the Court is aware of no evidence in the record of actual firearms—there is little evidence of whether the violent protesters’ actions were “open or avowed.” Some presumably engaged violently with officers at close quarters in the daylight, while many others threw items under cover of darkness, protected by a crowd, identities concealed. Certainly, the peaceful protesters were “organized” to some degree, in that people knew generally knew where to go to participate in protests, see, e.g., Espíritu Decl. Ex. F (“Dozens of protesters gathered Friday evening outside a federal detention center in Los Angeles where lawyers said those arrested had been taken, chanting ‘set them free, let them stay!’”), but there is no evidence of organized, as apart from sporadic or impromptu, violence. Nor is there evidence that any of the violent protesters were attempting to overthrow the government as a whole; the evidence is overwhelming that protesters gathered to protest a single issue—the immigration raids.

Judge Breyer further recognized the implications of calling it a “rebellion” had on the exercise of First Amendment rights to protest.

Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion. The U.S. Reports are chock-full of language explaining the importance of individuals’ right to speak out against the government—even when doing so is uncomfortable, even when doing so is provocative, even when doing so causes inconvenience.

Applying these principles, courts have repeatedly reaffirmed that peaceful protest does not lose its protection merely because some isolated individuals act violently outside the protections of the First Amendment:

Moreover, although defendants make much of the fact that some demonstrators had allegedly violated the law, transforming the peaceful demonstration into a potentially disruptive one, the Supreme Court has expressly held that “the right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”

Jones v. Parmley, 465 F.3d 46, 57 (2d Cir. 2006) (cleaned up) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982)).

One of the defining factors of Trump’s assertion of extraordinary, or as the court held, ultra vires, powers is that the events, whether years of immigrants unlawfully crossing the southern border or a small cohort of violent actors amidst peaceful protesters in Los Angeles, justify the hyperbolic claims of invasion and rebellion. There could be an invasion. There could be a rebellion. But these were neither, and Trump merely saying so did not empower him to exercise extreme power reserved only for such exigencies.