I just listened to the 70-minute hearing that federal district judge Charles Breyer held on California’s motion for a temporary restraining order against President Trump’s nationalization of the California national guard. It’s clear to me that Judge Breyer will rule that Trump failed to comply with 10 U.S.C. § 12406 by failing to issue his order “through” Governor Newsom.
Newsom has argued more broadly that under section 12406 Trump can’t nationalize the state national guard without getting Newsom’s consent. That position got zero attention during the entire hearing, and I think it’s plainly wrong.
Judge Breyer indicated that he hopes to issue his ruling very soon, probably today. Before he does, President Trump should re-issue his order to and “through” Newsom. That would completely undercut Breyer’s ground for prospective relief.