As almost every school child in this country once learned, Paul Revere, who was employed by the Boston Committee of Correspondence and the Massachusetts Committee of Safety as “an express rider to carry news, messages, and copies of important documents as far away as New York and Philadelphia,” played a key role in the American Revolution.
Around midnight on April 18, 1775, Revere was ordered to ride to Lexington, Mass., and warn the townspeople that British soldiers, who were quartered in Boston, were ready to head their way. “And so through the night went his cry of alarm / To every Middlesex village and farm,” Henry Wadsworth Longfellow famously wrote, declaring Revere’s warning “a word that shall echo forevermore!”
On Tuesday, 250 years after that ride, Judge Charles Breyer of the Federal District Court in San Francisco raised a similar ruckus without ever leaving the bench. In a 50-page opinion finding President Donald Trump’s use of the military in Los Angeles illegal, Breyer offered a master class in judicial craftsmanship. And he pulled no punches in alerting the nation to the danger that awaits us.
Breyer…took the unusual step of criticizing a ruling of the Ninth Circuit Court of Appeals, to which he nominally reports, for its dangerous acquiescence in the president’s authoritarian agenda. This bold, courageous judging is precisely what is called for in the present moment.
He did not let the niceties of legal argument get in his way. Breyer left no stone unturned in detailing the president’s lawless deployment of troops and his plan to turn the military into a national police force answerable only to him. But he also took the unusual step of criticizing a ruling of the Ninth Circuit Court of Appeals, to which he nominally reports, for its dangerous acquiescence in the president’s authoritarian agenda. This bold, courageous judging is precisely what is called for in the present moment.
Breyer sounded the alarm by quoting Democratic Rep. William Kimmel of Maryland, an early proponent of the 1878 Posse Comitatus Act, which prohibits the use of the military in domestic law enforcement. While Breyer’s jurisdiction only extends to L.A., he borrowed from Kimmel and wrote, “‘If this may be done in one district may it not be done in all the districts? If so, and the interest of a President demands, may he not use this power for his own purposes?’”
“‘May he not by this means,’” Breyer added, ‘“subject every reluctant commander to the order of any political miscreant he may choose to make an assistant collector of revenue, until the whole Army is under his control, and then…in the name of order substitute his will for law?’”
Sound familiar? Democratic governors including Gavin Newsom of California, JB Pritzker of Illinois and Wes Moore of Maryland certainly think so. Like Breyer, they have been telling anyone who listens that the National Guard is coming. And like the British at the time of the revolution, this force is up to no good.
As Pritzker put it when referring to Trump’s plan to deploy troops to Chicago, “Let’s be clear, the terror and cruelty is the point, not the safety of anyone living here.” Similarly, Newsom branded the use of the military in L.A. the “rule of cruelty.” But because they are ambitious politicians who are widely expected to run for president in 2028, some will dismiss what they are saying as just more partisan Trump bashing.
That’s why Breyer’s words are so important: They come from a respected, senior judge with no aspirations for advancement. Nonetheless, the president quickly attacked, calling him a “radical left judge.”
The Posse Comitatus Act reads, “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
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The Brennan Center for Justice describes the law as “an American tradition that sees military interference in civilian affairs as a threat to both democracy and personal liberty.” Passed in 1878, the act was designed to prevent the military from being used to support Jim Crow in the South.
With this history in mind, it seems to be no accident that in our time the president is sending troops to cities in blue states with Black mayors and substantial Black and brown populations, while ignoring crime and disorder in red states.
Breyer saw that clearly, reminding his readers that, in our constitutional system, “States have ‘a quasi-sovereign interest in the health and well-being — both physical and economic — of [their] residents.’” He explained, “[T]here is little support in the Founding Era for an inherent constitutional authority for the President to call forth the militia, or to use the military generally, to execute the laws.” But he didn’t stop there, offering an analysis of judicial precedent that was a moral tour de force.
The Ninth Circuit Court’s earlier decision, which found that the president can use federal power if his ability to execute federal law has been “significantly impeded,” rather than having to meet a stricter statutory requirement, was a disaster, Breyer wrote.
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Such a broad interpretation, he argued, could allow the president to use the military to go after tax cheats, polluters, drug users and other low-level offenders all under the pretext that, without troops, he would be unable to enforce federal laws.
Breyer refused to play along with what he described as Trump’s deliberate and calculated plan to violate the Posse Comitatus Act. The judge was explicit in naming the danger: The president’s apparent belief that “I have the right to do anything I want to do,” and his desire to secure a “perpetual, atextual right to defy Congress if he determines it necessary to protect federal property, personnel, or functions.”
With this ruling, Breyer has done us all a great service. Not only did he rule that Trump’s use of the National Guard and Marines in L.A. was illegal, but he used his office to alert Americans that opposing such nakedly unconstitutional ploys is what will be required of all of us — if we are to have any chance of saving our democracy. Paul Revere would be proud.
Longfellow ended his poem on a confident note, declaring that, “borne on the night-wind of the Past, / through all our history, to the last,” Americans would “waken and listen” to Revere’s “midnight message.”
With his powerful ruling, Breyer has also alerted us. Now, we can only hope that Longfellow’s optimistic prediction will be proven correct.
