Newsome v Trump Who's Correct?

States Rights or Military Rule?

By Matt Murdock, Esq

Introduction: The Cotton Club is thick with smoke tonight, the horns of Duke Ellington echoing through velvet air, brass and bass rising in syncopation with the steady hum of law itself. I sit in the corner, cane tapping against the hardwood floor like a gavel, ears tuned to the pulse beneath the music. The Constitution has a rhythm of its own, steady as a bassline. Every case, every ruling, every struggle between state and federal power adds another note, another chord to the score of American federalism. Tonight’s melody carries us from 1827 to 2025, from Martin v. Mott to Newsom v. Trump, a lineage as old as the Republic and as alive as the trumpet’s wail just beyond this page. The legal review that follows is not simply a record of one governor’s dispute with one president. It is the story of a centuries-long duel between federal authority and state sovereignty, fought through the words of justices, the commands of presidents, and the pleas of governors. Gavin Newsom, standing in federal courtrooms against Donald Trump, finds himself not merely a politician of the moment but an inheritor of this lineage. His case is a riff on a theme as old as the Militia Acts and as contemporary as the Tenth Amendment’s stubborn refusal to fade. I write as both lawyer and witness, blind to the page but not to the law’s music. The Cotton Club is my courtroom, its stage my bench, its audience the jury of history. What follows is an exhaustive account of this legal symphony, broken into movements, each case a solo, each statute a motif. At the heart is Newsom v. Trump, the most recent improvisation in the eternal contest over who holds the baton when the nation calls out the troops.

Part I: Historical Foundations of Federalization

The lineage begins with Martin v. Mott, decided in 1827. Jacob Mott, a militia member, refused to report when President James Madison called up troops during the War of 1812. He argued that the President could not decide for himself whether an exigency like invasion or insurrection existed, and that such a determination was open to judicial review. The Supreme Court disagreed. Justice Joseph Story wrote that the President’s judgment in calling out the militia was “conclusive upon all other persons.” In other words, once the President said the conditions justified federalizing state forces, that decision could not be second-guessed by courts or governors. The ruling set the tone for nearly two centuries: in matters of calling forth the militia, the President’s word carried nearly absolute weight. This deference would remain a powerful precedent, cited time and again to defend executive action. But history rarely allows power to remain unchecked. After the Civil War, Congress enacted the Posse Comitatus Act in 1878. The Act forbade the use of the Army, and later the Air Force, in executing domestic laws unless expressly authorized by Congress or the Constitution. By policy, the ban was later extended to the Navy and Marine Corps. The law was born from the people’s fear of military domination after years of federal troops occupying the South during Reconstruction. It sought to draw a sharp line between military and civilian authority, to ensure that law enforcement remained in the hands of sheriffs and police rather than generals. In practice, it meant that unless Congress invoked specific statutes such as the Insurrection Act, the military could not be used as a domestic police force. The Act would become a cornerstone of cases like Newsom v. Trump, where the question turned on whether Marines and Guardsmen were engaged in law enforcement roles that the statute prohibited. Fast forward more than a century to 1990, when the Supreme Court decided Perpich v. Department of Defense. Governor Rudy Perpich of Minnesota challenged the federal government’s authority to send National Guard units overseas for training without his consent. He argued that the Guard was primarily a state force under the control of governors. The Court rejected his claim. Justice John Paul Stevens explained that the National Guard is a dual-status force. In state status, under Title 32, Guard members serve the governor. But when federalized under Title 10, they become indistinguishable from the regular Army. The Court upheld the federal government’s authority, underscoring that once federalized, the Guard belongs to the President alone. This case reinforced presidential supremacy over the Guard while highlighting the perpetual tension between state sovereignty and federal control. Together, Martin v. Mott, the Posse Comitatus Act, and Perpich v. Department of Defense create the first movement in this legal symphony. They establish the outer frame: broad presidential discretion in federalizing militias, a statutory prohibition on military law enforcement, and recognition of the Guard’s dual identity. The Tenth Amendment lingers in the background, not yet given full voice, but waiting to surface in the next movement.

Part II: Modern Federalism and the Rise of Anti-Commandeering

The Cotton Club never sleeps. The trumpet wails like a question from the bench, the bass thumps steady like the heartbeat of the Tenth Amendment. By the time the twentieth century gave way to the twenty-first, the courts had begun to shift the melody. If Martin v. Mott set the tune of deference to presidential authority and Perpich reaffirmed it, the modern Court found its voice in the doctrine of anti-commandeering. The horns grew sharper, the rhythm tighter, and suddenly the states had their own solos to play. The first notes of this shift came in New York v. United States, decided in 1992. The case arose from a federal law designed to address the disposal of radioactive waste. Congress told the states they had two options: either regulate the waste according to federal standards or take ownership of it themselves. New York balked. The Supreme Court, in an opinion by Justice Sandra Day O’Connor, struck down the “take title” provision. The Court held that Congress cannot compel the states to enact or administer a federal regulatory program. In plain language, the federal government cannot force a state legislature to dance to its tune. This was the birth of the modern anti-commandeering doctrine, rooted firmly in the Tenth Amendment. The Court explained that while the federal government may encourage states with incentives or even preempt state laws through valid federal regulation, it may not simply command a state to legislate. New York v. United States was a sharp chord in the federalism symphony, a signal that the Tenth Amendment still carried weight in the constitutional orchestra. Five years later the Court struck another emphatic note in Printz v. United States. The case challenged provisions of the Brady Handgun Violence Prevention Act that required local sheriffs to conduct background checks on firearm purchasers. Sheriffs Jay Printz and Richard Mack objected, arguing that Congress had no authority to force them into service. Justice Antonin Scalia, writing for the Court, agreed. The opinion declared that the federal government may not compel state executive officers to administer federal law. The reasoning was simple but profound: the Constitution established a system of dual sovereignty. The federal government and the states are coequal sovereigns, each accountable to their own citizens. To allow Washington to draft state officials into federal service would collapse that balance. Printz was more than a technical ruling about gun checks. It was a trumpet blast announcing that the Tenth Amendment meant what it said. States retained their own dignity, their own powers, their own voices in the federalist orchestra. The anti-commandeering melody deepened in 2000 with United States v. Morrison. The case involved the Violence Against Women Act, which created a federal civil remedy for victims of gender-motivated violence. Congress argued it had authority under the Commerce Clause and the Fourteenth Amendment. The Court disagreed. In an opinion by Chief Justice William Rehnquist, the Court held that violence against women, however tragic, was not economic activity that substantially affected interstate commerce. Nor was it an area where the Fourteenth Amendment permitted federal intrusion. The Court reaffirmed that criminal law enforcement and policing are at the core of state power. While not framed in the language of anti-commandeering, Morrison reinforced the principle that there are limits to federal authority and that states remain primary guardians of public safety. The case underscored that even when Congress is motivated by the noblest of goals, it cannot rewrite the balance of power between Washington and the states. The doctrine matured further in 2018 with Murphy v. National Collegiate Athletic Association. This case concerned sports betting. A federal statute, the Professional and Amateur Sports Protection Act, prohibited states from authorizing or licensing sports gambling. When New Jersey sought to repeal its own ban on sports betting, the NCAA and professional sports leagues sued to block the repeal. The Supreme Court sided with New Jersey. Justice Samuel Alito wrote that the federal law violated the anti-commandeering principle. It did not merely regulate private actors; it told state legislatures what they could and could not do. That, the Court explained, was unconstitutional. Murphy broadened the anti-commandeering doctrine by making clear that it is not only affirmative commands that are barred. Congress may not forbid a state from repealing its own laws either. In the jazz of federalism, the decision gave states not just the right to refuse to play Washington’s song but the right to silence their own instruments if they chose. Together, these four cases form the second movement of the symphony. New York v. United States gave the doctrine life, Printz v. United States gave it force, United States v. Morrison gave it context in policing, and Murphy v. NCAA gave it breadth. In the Cotton Club, the band swells. The Tenth Amendment is no longer a quiet bassline. It has become a trumpet solo, sharp and insistent, demanding recognition. The stage was set for states like California to take these precedents and wield them as shields against federal overreach. And Gavin Newsom, whether he knew it or not, was preparing to step onto that stage as the next soloist.

Part III: California’s Sanctuary Battles

 The Cotton Club slows into a low swing now, the clarinet winding through smoke and chatter. Federalism is never static; its tempo shifts with every decade, every president, every governor willing to test the limits. By the time Gavin Newsom took the stage as California’s governor in January 2019, the anti-commandeering doctrine was already humming like a saxophone solo through the halls of the Supreme Court. And almost immediately, California found itself in the spotlight, battling the Trump administration over immigration laws that went to the very heart of state sovereignty. The case was United States v. California, litigated first in the Eastern District of California and then in the Ninth Circuit Court of Appeals. The federal government under President Trump sued California over three laws: Assembly Bill 450, Assembly Bill 103, and Senate Bill 54. Each law limited how state officials could cooperate with federal immigration authorities. Senate Bill 54, often called the “sanctuary state law,” prohibited state and local law enforcement from using resources to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes. Assembly Bill 450 restricted employers from voluntarily allowing federal immigration enforcement agents into their workplaces without warrants. Assembly Bill 103 authorized state officials to inspect federal detention facilities holding immigrants. The Department of Justice argued that these laws violated the Supremacy Clause of the Constitution, claiming they obstructed federal immigration enforcement. California defended the laws by invoking the Tenth Amendment’s anti-commandeering doctrine. The state argued that while the federal government may enforce immigration laws itself, it cannot compel the state to assist. Just as the Court in Printz said sheriffs cannot be drafted into federal service, California said its officers cannot be conscripted as immigration agents. In 2019, the Ninth Circuit ruled largely in California’s favor. The court upheld Senate Bill 54, affirming that states may choose not to use their resources to enforce federal immigration law. The decision explained that the anti-commandeering doctrine protects the states’ right to decline to administer federal programs, even when refusal makes enforcement more difficult for federal authorities. The court did strike down one provision of Assembly Bill 103 that it found discriminated against the federal government, but the bulk of California’s sanctuary framework survived. The Supreme Court later denied certiorari, leaving the Ninth Circuit’s ruling intact. The victory in United States v. California was more than a policy win. It was a doctrinal statement: the anti-commandeering rule was alive and powerful in the Ninth Circuit, and California knew how to wield it. In the Cotton Club, the band picked up the tempo again. The Tenth Amendment was no longer a background bassline. It had become the melody itself, carrying California into battle after battle with Washington. For Gavin Newsom, the case set the stage for the fights that would follow. As a new governor, he inherited a state already locked in combat with the Trump administration, and already armed with a federal court opinion affirming California’s right to resist federal demands in the name of sovereignty. When the time came in 2025 to challenge Trump’s federalization of the California National Guard, Newsom’s legal team reached back to United States v. California. The case provided not only precedent but also momentum, showing that California could stand its ground in the Ninth Circuit and win. The Cotton Club crowd leans forward now. The band is tightening, each note sharper than the last. The groundwork has been laid. The stage is set. The next solo will not be about employers or detention inspections. It will be about soldiers in the streets, Humvees at city corners, Marines in MacArthur Park. And the question will be whether the President’s baton can drown out the Governor’s voice in the orchestra of federalism.

Part IV: Newsom v. Trump

The Cotton Club is at full volume now. The drummer leans into the snare, the trumpet shouts its high notes into the rafters, and the crowd shifts in their seats. The melody has reached its crescendo, because here lies the case that ties two centuries of law together: Newsom v. Trump, Case Number 3:25-cv-04870-CRB, in the United States District Court for the Northern District of California.

The story begins in June 2025, when federal immigration raids in Los Angeles sparked widespread protests. Some of those protests turned tense. There was property damage, there were objects thrown at officers, but local police reported they had the situation under control. On June 7, 2025, President Donald Trump issued a memorandum invoking 10 U.S.C. § 12406, ordering more than two thousand California National Guard members into federal service, later expanded to over four thousand. He also authorized the deployment of seven hundred active-duty Marines. None of this was done with Governor Gavin Newsom’s consent.

California’s response was immediate. On June 9, Governor Newsom and the State of California filed a complaint in federal court. The suit named President Trump, Secretary of Defense Pete Hegseth, and the Department of Defense as defendants. The complaint argued that the President’s action was ultra vires, meaning beyond the scope of his legal authority. Section 12406 permits federalization of the Guard only in specific circumstances: invasion, rebellion, or when the President is unable with the regular forces to execute the laws of the United States. The complaint insisted none of those conditions were met. There was no invasion, no rebellion, and no showing that federal civilian forces were incapable of enforcing the law.

The complaint also argued that commandeering the California National Guard without the Governor’s consent violated the Tenth Amendment. Public safety and policing, it said, are core state powers, and diverting thousands of Guardsmen from state duties such as wildfire response usurped California’s sovereignty. The complaint added a claim under the Administrative Procedure Act, asserting that the federalization was arbitrary and unlawful. It sought a declaratory judgment that the orders were illegal, an injunction halting the deployment, and attorneys’ fees.

On June 10, California filed a motion for a temporary restraining order and preliminary injunction. The motion repeated the statutory and constitutional arguments and added that the deployment violated the Posse Comitatus Act. The Act prohibits the military from enforcing civilian laws unless expressly authorized, and here Marines and federalized Guardsmen were being used for law enforcement tasks. The motion stressed irreparable harm: not only the strain on California’s ability to fight fires and natural disasters, but also the escalation of unrest when residents saw soldiers patrolling their streets.

Other states soon joined the fight. On June 11, New York and others filed an amicus brief supporting California, warning that if the President could federalize state Guards at will, state sovereignty itself would be eroded. The same day, the federal government filed its response. It argued that Section 12406 gave the President discretion whenever federal law was obstructed, that the Posse Comitatus Act did not apply because the troops were defending federal property rather than enforcing civilian law, and that the Tenth Amendment claim failed if statutory authority was valid.

Judge Charles R. Breyer moved quickly. On June 12, he granted California’s request for a temporary restraining order, enjoining the deployment and ordering the Guard returned to state control. His opinion emphasized that California was likely to succeed on its claim that Section 12406’s conditions had not been met, and that using soldiers for law enforcement raised serious constitutional and statutory concerns.

But the federal government appealed to the Ninth Circuit Court of Appeals. On June 19, a three-judge panel stayed the TRO. The panel cited Martin v. Mott, noting that the President’s determinations under Section 12406 are entitled to broad deference. It reasoned that evidence of interference with federal immigration enforcement was enough to justify the call-up under subsection three of the statute. The panel also held that the Tenth Amendment does not give governors veto power over presidential action when valid statutory authority exists. For a time, federal control over the Guard was restored.

The case moved into discovery and trial preparation. On August 11 and 12, 2025, Judge Breyer presided over a bench trial on the preliminary injunction. Witnesses testified that Marines and Guardsmen had set up perimeters, directed traffic, and in some cases detained protesters. These roles looked less like protection of federal property and more like civilian law enforcement. Internal documents revealed that military planners had dubbed one deployment “Operation Excalibur,” in which Humvees were used to surround demonstrators in MacArthur Park. Local law enforcement officials testified that they had not requested federal assistance and that they believed the situation was manageable.

On September 2, 2025, Judge Breyer issued his ruling. In a fifty-two-page opinion, he held that the deployment violated the Posse Comitatus Act. The evidence showed that troops were engaged in direct law enforcement activities, precisely what the Act forbids absent express authorization. He emphasized that the statutory triggers of Section 12406 had not been met: there was no invasion, no rebellion, and no showing that regular civilian forces were incapable of enforcing the law. Breyer described Operation Excalibur as “an unlawful intimidation tactic.” He wrote, pointedly, that “the President is not King” and that executive power must remain within the bounds of the law.

The injunction he issued prohibits the use of National Guard and Marines in California for law enforcement tasks. It takes effect on September 12, allowing time for appeal, and applies only within California. The White House criticized the decision as misguided, insisting the deployments were meant only to protect federal property. Governor Newsom hailed it as a victory for state sovereignty and constitutional order.

In the Cotton Club, the band reaches its climax. The ruling ties together every note that has been played across two centuries. Martin v. Mott’s deference meets the modern insistence of Printz and Murphy. The Posse Comitatus Act, born from Reconstruction, reasserts its force. And Gavin Newsom, standing on the federal courthouse steps, becomes the newest soloist in the long jazz of federalism. The audience leans forward, waiting to hear whether the Ninth Circuit, and perhaps the Supreme Court, will let the music resolve or demand another refrain.

Part V: Implications and Conclusion

The Cotton Club softens now. The horns ease back, the drummer brushes his snare, and the upright bass walks a steady line. The climax has passed, but the echoes linger. Judge Breyer’s injunction in Newsom v. Trump is not the end of the music. It is a transition, a modulation, the kind of unresolved chord that hangs in the air and demands an answer from the next movement, in this case, the Ninth Circuit, and perhaps the Supreme Court.

The implications of this case stretch far beyond Los Angeles. They speak to the balance of power between states and the federal government, between governors and presidents, between the Constitution’s text and its interpretation across centuries. At stake is nothing less than the rhythm of American federalism.

First, there is the question of presidential discretion under 10 U.S.C. § 12406. Martin v. Mott gave presidents nearly unchecked authority to decide when conditions warranted calling up the militia. For almost two hundred years, that deference stood as a pillar of executive power. But Judge Breyer’s ruling suggests that in modern times, such authority is not absolute. Courts can and must examine whether the statutory conditions, invasion, rebellion, or inability of regular forces to execute the laws, have truly been met. That is a profound shift. It does not overrule Martin v. Mott, but it narrows its reach, insisting that deference cannot mean abdication.

Second, the ruling breathes new life into the Posse Comitatus Act. For decades, the Act has stood as a warning against military involvement in civilian affairs, yet presidents have often skirted its edges. By finding that Marines and Guardsmen crossed the line into law enforcement when they directed traffic, secured perimeters, and detained protesters, Judge Breyer reaffirmed that the Act has teeth. It is not a relic of Reconstruction but a living statute, capable of restraining executive action in the twenty-first century.

Third, the Tenth Amendment’s bassline grows louder. New York v. United States, Printz v. United States, United States v. Morrison, and Murphy v. NCAA had already established the doctrine of anti-commandeering and the preservation of state sovereignty. United States v. California applied that doctrine in the Ninth Circuit, giving California the confidence to resist federal pressure. Newsom v. Trump extends this lineage into the realm of military federalization, suggesting that even when the Guard is federalized, states retain a constitutional interest in protecting their sovereignty and ensuring their resources are not commandeered unlawfully.

The conclusion is not just legal but political. If the President can federalize a state’s Guard at will, then governors become spectators, their capacity to protect their people subject to federal whim. If, however, courts demand adherence to statutory limits and recognize the Tenth Amendment’s role in safeguarding sovereignty, then governors remain co-equal voices in the federalist symphony.

In the Cotton Club, the music quiets. The audience knows the show is not over. The Ninth Circuit will review Judge Breyer’s injunction, and the Supreme Court may be asked to decide whether Martin v. Mott still controls or whether the anti-commandeering doctrine reshapes the law of federalization. The Court will be asked to reconcile nineteenth-century deference with twenty-first-century federalism. The stakes are immense.

The lesson of Newsom v. Trump is that federalism is jazz, not classical. It improvises, it evolves, it bends the rules while staying true to its rhythm. The President is not a king, the states are not vassals, and the Constitution is not a march but a melody. Gavin Newsom’s case is not the first solo, and it will not be the last. The law will continue to play, each case another note, each ruling another chord, until the song of American federalism reaches its next refrain.

The Cotton Club empties slowly, the last notes fading into the Harlem night. I rest my cane against the bar, knowing the music will play again tomorrow. The Tenth Amendment’s bassline will keep time, steady and enduring, until the next governor, the next president, the next case steps into the spotlight.

Source: Matt Murdock Esq.

Endnotes

• Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827). In this case the Supreme Court held that the President’s determination of whether an exigency existed to call forth the militia was “conclusive upon all other persons,” establishing a tradition of deference to executive authority in federalizing state forces.

• Posse Comitatus Act, 18 U.S.C. § 1385 (1878). This Act prohibits the use of the Army and Air Force in domestic law enforcement absent express constitutional or congressional authorization, and Department of Defense policy has extended its prohibitions to the Navy and Marine Corps.

• Perpich v. Dep’t of Def., 496 U.S. 334, 352–53 (1990). The Court held that National Guard units may be ordered to federal training without gubernatorial consent, reaffirming that Guard members serve in a dual capacity as both state and federal troops.

• New York v. United States, 505 U.S. 144, 174–77 (1992). The Court struck down a provision requiring states to take title to radioactive waste, holding that Congress cannot compel state legislatures to enact or enforce federal regulatory programs, thus announcing the modern anti-commandeering doctrine.

• Printz v. United States, 521 U.S. 898, 933 (1997). The Court invalidated provisions of the Brady Act requiring local sheriffs to conduct firearm background checks, holding that the federal government cannot compel state executive officials to administer federal laws.

• United States v. Morrison, 529 U.S. 598, 617–18 (2000). The Court struck down a provision of the Violence Against Women Act, ruling that gender-motivated violence was not an economic activity subject to federal regulation under the Commerce Clause and reaffirming the states’ central role in criminal law enforcement.

• Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453, 479 (2018). The Court held that the Professional and Amateur Sports Protection Act violated the anti-commandeering rule by prohibiting states from repealing their own sports-betting laws.

• United States v. California, 921 F.3d 865, 891–92 (9th Cir. 2019). The Ninth Circuit upheld California’s sanctuary state law, SB 54, finding that the state’s refusal to use its resources to enforce federal immigration law was permissible under the Tenth Amendment’s anti-commandeering principle.

• Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. filed June 9, 2025). Governor Gavin Newsom and the State of California sued President Donald Trump and other federal officials over the federalization of California National Guard troops.

• Order Granting Temporary Restraining Order at 4, Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. June 12, 2025). Judge Charles R. Breyer granted California temporary relief, holding that the plaintiffs were likely to succeed on their statutory and constitutional claims.

• Order, Newsom v. Trump, No. 25-3727 (9th Cir. June 19, 2025). The Ninth Circuit stayed the TRO, citing Martin v. Mott and deferring to the President’s judgment under 10 U.S.C. § 12406.

• Opinion and Order, Newsom v. Trump, No. 3:25-cv-04870-CRB (N.D. Cal. Sept. 2, 2025). Judge Breyer issued a fifty-two-page opinion holding that the deployment violated the Posse Comitatus Act because federal troops engaged in direct law enforcement tasks such as crowd control, traffic direction, and perimeter security, and finding that the statutory triggers of 10 U.S.C. § 12406 had not been satisfied.

• 10 U.S.C. § 12406 (2023). This statute authorizes the President to call National Guard units into federal service in cases of invasion, rebellion, or when the President is unable with the regular forces to execute the laws of the United States.

• Insurrection Act, 10 U.S.C. §§ 251–255 (2023). This statute permits the President to use armed forces, including federalized National Guard units, in cases of insurrection, rebellion, or obstruction of the execution of federal law, but with heightened conditions and limits compared to 10 U.S.C. § 12406.

• Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The Court held that where federal statutes trench on traditional state authority, Congress must make its intent unmistakably clear, a principle applied in interpreting the scope of 10 U.S.C. § 12406 in Newsom v. Trump.

• Massachusetts v. EPA, 549 U.S. 497, 520 (2007). The Court held that states are entitled to “special solicitude” in standing analysis when they assert injuries to their sovereign interests, a principle relevant to California’s claim of harm from the federalization of its Guard.

• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585–86 (1952). The Court held that the President’s power must stem either from an act of Congress or from the Constitution itself, a principle underscoring the limits of executive authority in Newsom v. Trump.