Cristian Farias writes:

The Tenth Amendment to the U.S. Constitution is so short and self-evident that you don’t need a law degree to understand it, or a judge to explain it to you: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That language had real teeth during Donald Trump’s first Presidency, as states, cities, and localities invoked it to stop his abuse of immigration laws, of the purse strings that belong to Congress, and of their own authority over their affairs and general welfare. This fight against government overreach has continued well into Trump’s second term. “Here we are again,” William Orrick, a senior federal-district judge in San Francisco, wrote in a recent opinion barring the Trump Administration from withholding funding that Congress had already allocated to state and local authorities for policing and other prerogatives. (He made a similar ruling during the first Trump Presidency.) The Administration’s actions, Orrick wrote, in April, “violate the Tenth Amendment because they impose coercive condition[s] intended to commandeer local officials into enforcing federal immigration practices and law.”

For the past two months, in a courtroom not far from Orrick’s, another senior U.S. district judge, Charles Breyer, has been grappling with whether the Tenth Amendment and federal law provide “a limiting principle” to a President who wills local problems into national ones. In June, as Los Angeles residents protested how Immigration and Customs Enforcement was disrupting people’s lives and work, Trump’s response was to send in backup from California’s National Guard, the largest such force in the country. “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States,” a Presidential memorandum to Pete Hegseth, the Defense Secretary, said. Governor Gavin Newsom and the state of California sued almost immediately, leading to the case known as Newsom v. Trump.

Judge Breyer, the younger brother of the retired Supreme Court Justice Stephen Breyer, has a problem with the word “rebellion”; he underlined it in his first opinion in the case. The word appears in the Constitution five times—four of them in the Fourteenth Amendment, the centerpiece of Reconstruction and Black equality after a real rebellion of states that wanted neither. The other appearance is in Article I, which grants Congress alone the power to suspend the writ of habeas corpus—the very mechanism that Stephen Miller and Kristi Noem have claimed grants the Administration power to detain and disappear people from this country. The word also shows up in the law that Trump invoked to federalize the California Guard. “Is it a ‘rebellion’ because the President says it is a ‘rebellion’?” Breyer asked during the trial for Newsom v. Trump, which lasted three days and ended last week.

At the outset of the case, and less than a week after Trump’s deployment of the California National Guard, Breyer had written an opinion declaring Trump’s actions illegal—“both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.” Trump, he wrote, “must therefore return control of the California National Guard to the Governor of the State of California forthwith.” Yet almost as quickly as he ruled, a panel of the U.S. Court of Appeals of the Ninth Circuit, which included two judges appointed by Trump during his first term, pumped the brakes on Breyer’s constitutional pronouncement and ruled for the President on a different ground—namely, that his federalization of the California National Guard complied with a statute that allows him to do just that. [Continue reading…]