FILE PHOTO: WASHINGTON, DC - MARCH 04: U.S. Supreme Court Associate Justice Amy Coney Barrett, Justice Brett Kavanaugh and retired Justice Anthony Kennedy attend U.S. President Donald Trump's address to a joint session of Congress at the U.S. Capitol on March 04, 2025 in Washington, DC. Win McNamee

On Tuesday, September 2 in the Northern District of California, U.S. District Judge Charles Breyer issued a second injunction against President Donald Trump's use of federalized National Guard troops and the U.S. Marines in Los Angeles. Attorneys for the Trump Administration are expected to aggressively appeal Breyer's ruling, and former federal prosecutor Kimberly Wehle — now a law professor at the University of Baltimore — believes the case could ultimately "land in the U.S. Supreme Court."

In an article published by the conservative website The Bulwark on September 4, Wehle explains why the case, if the High Court accepts it, "could prove to be the most consequential ruling since Trump v. United States, the 2024 decision that manufactured criminal pre-immunity for Trump."

Breyer's ruling, Wehle emphasizes, has major implications for the Insurrection Act as well as the Posse Comitatus Act of 1878. The former federal prosecutor argues that

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"Some background: The Framers of the Constitution, after having just a few years earlier fought a revolution to throw off the yoke of a bullying king, worried that a standing army could be used against civilians," Wehle explains. "But they also generally agreed that the federal government needed to have some coercive emergency powers…. Although this language is extremely broad, no president before Trump has dared to stretch it to the point of abuse. President Dwight D. Eisenhower famously relied on the Insurrection Act to deploy troops to help children safety attend Arkansas public schools after that state's governor called in its militia to thwart implementation of Brown v. Board of Education. Presidents have invoked the Insurrection Act a handful of times to suppress riots, most recently when (President) George H.W. Bush, at the request of California Gov. Pete Wilson, sent the National Guard to Los Angeles during the 1992 riots that followed the Rodney King verdict."

Wehle adds, "Those 1992 riots were far bigger and much more deadly and damaging than this year's protests in Los Angeles, which followed ICE detentions and arrests of dozens of people on June 6 in and around the city."

Wehle notes that under the Posse Comitatus Act of 1878, "the military cannot be invoked against civilians for local law enforcement unless a statutory exception to the law applies."

"In his latest ruling," according to Wehle, "Judge Breyer outright declared that Trump 'violated the Posse Comitatus Act.' The Marine and National Guard troops sent to California, which together were called 'Task Force 51,' were instructed during training that certain law enforcement functions are prohibited by the law. Those included security patrols, traffic control, crowd control, and riot control. (Defense Secretary Pete) Hegseth nonetheless issued a memo directing them to do what's 'necessary to ensure the execution of Federal functions and the safety of Federal personnel.'"

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Wehle adds, "Breyer concluded: 'The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles.'"

The University of Baltimore law professor stresses that whether the U.S. Supreme Court will agree or disagree with Breyer's reasoning should it take the case remains to be seen.

"Thanks to another one of the Supreme Court's recent pro-Trump decisions, which held that so-called 'universal injunctions' operating outside a lower court’s territorial jurisdiction are unlawful, Breyer's ruling will not stop Trump from targeting Chicago and Baltimore next," Wehle argues. "If the Supreme Court does get to the case, which is likely, it has plenty of leeway to stretch the majority's approach to presidential power laid out in Trump v. U.S. — i.e., that it's virtually unlimited — to back him this round, as well. And Trump knows it."

Wehle adds, "Of the possible deployment of the National Guard in Chicago, Trump said: 'I have the right to do anything I want to do. I'm the president of the United States. If I think our country is in danger, and it is in danger in these cities, I can do it.' Tragically, with this supplicant Congress and enabling Supreme Court majority in tow, he might be right."

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Kimberly Wehle's full article for The Bulwark is available at this link.