Strict Scrutiny - Episode: Can Trump Mobilize the Military Without California's Consent? Release Date: June 16, 2025

In this pivotal episode of Strict Scrutiny, hosted by constitutional law experts Leah Litman, Kate Shaw, and Melissa Murray, the focus centers on the controversial deployment of nearly 5,000 federal troops to Los Angeles by the Trump administration. The discussion delves deep into the legal ramifications, constitutional questions, and the broader implications for civil rights and federalism in the United States.

1. The Deployment of Federal Troops in Los Angeles

The episode opens with the unfolding crisis in Los Angeles, where mass ICE raids led to widespread protests. Initially peaceful, some demonstrations escalated into property damage, prompting President Trump to take unprecedented action.

Leah Litman ([05:01]) outlines the gravity of the situation:

"As of Thursday, there are nearly 5,000 federal troops deployed in an American city."

The administration's response involved Trump signing an executive order on June 6, utilizing 10 U.S.C. section 12406 to federalize the California National Guard and deploy 700 Marines. This move bypassed the customary protocol of seeking the state governor's consent.

2. Legal Framework and Constitutional Questions

The hosts dissect the legal underpinnings of the President's authority to deploy military forces domestically. Historically, such deployments required explicit approval from state governors, except in extreme circumstances like the Little Rock Crisis (1957) and the Selma Marches (1965).

Kate Shaw ([10:31]) emphasizes the rarity and seriousness of overturning these norms:

"The statute doesn't require any substantive assent or approval... that's federalism at play."

The conversation highlights the Insurrection Act and the Posse Comitatus Act, which restrict military involvement in domestic law enforcement. The Trump administration's actions spark concerns about overreach and misuse of executive power.

3. California's Legal Challenge

Gavin Newsom, the Governor of California, spearheads a lawsuit challenging the legality of the federal troop deployment. The state argues that the President violated 10 U.S.C. Section 12406 by not consulting the governor, a requirement for such federal mobilization.

Leah Litman ([15:21]) summarizes California's stance:

"California is arguing that section 12406 specifies that when the President calls members of the state National Guard into federal service, those orders shall be issued through the governors of the states."

4. Department of Justice's Response

The Department of Justice (DOJ), led by Attorney General Pamela Jo Bondi, responds inadequately to California's lawsuit. The DOJ's filing is criticized for its lack of substantive argumentation and reliance on the administration's interpretation of statutory language.

Dahlia Lithwick ([16:16]) mocks the DOJ's submission:

"They fucked it up. So the table of contents just said table of contents."

5. Judicial Proceedings and Judge Breyer's Decision

A pivotal hearing took place on June 12 before District Judge Charles Breyer. Judge Breyer questions the administration's rationale, emphasizing the difference between lawful executive action and authoritarian overreach.

Dahlia Lithwick ([19:08]) quotes Judge Breyer:

"That's the difference between a constitutional government and King George. It's not just that the President can say something and anything goes."

Judge Breyer rules against the Trump administration, invalidating the federalization of the California National Guard. He asserts that the President failed to meet the statutory requirements for such an action, particularly the necessity of involving the state governor.

Leah Litman ([15:26]) highlights the ruling:

"Judge Breyer may rule that the administration's federalization of the National Guard was illegal."

6. Implications and Future Developments

The episode anticipates immediate legal repercussions, including potential appeals to the Ninth Circuit. The DOJ's weak defense and the administration's aggressive stance suggest a turbulent legal battle ahead.

Leah Litman ([83:05]) provides an update:

"A hearing on this order to show cause will be held on June 20th."

Additionally, reports indicate that Marines may be detaining American citizens, further complicating legal interpretations under the Posse Comitatus Act.

7. Broader Supreme Court Context

Beyond the LA deployment, the hosts briefly touch upon other Supreme Court cases, including AJT vs ACEO Area School Districts and Martin vs United States, discussing standards for reviewing discrimination claims and sovereign immunity in federal tort claims.

Notable Quotes

• Leah Litman ([05:01]): "We are going to start off with the unfolding scene in Los Angeles, where as of Thursday, there are nearly 5,000 federal troops deployed in an American city."

• Dahlia Lithwick ([19:08]): "That's the difference between a constitutional government and King George. It's not just that the President can say something and anything goes."

• Kate Shaw ([10:31]): "The statute doesn't require any substantive assent or approval... that's federalism at play."

Conclusion

This episode of Strict Scrutiny meticulously unpacks the constitutional crisis unfolding in Los Angeles, where executive overreach threatens the delicate balance of federalism and civil liberties. Through expert analysis and timely legal updates, the hosts illuminate the precarious intersection of politics, law, and military power in contemporary America.

For listeners eager to stay informed on Supreme Court dynamics and legal culture, this episode underscores the relentless vigilance required to safeguard democratic principles.