The Lawfare Podcast: Federal Judges Rule Against Trump on National Guard Deployment, Tariffs, and Removal of Migrant Children to Guatemala

Date: September 3, 2025
Host: Benjamin Wittes
Guests: Lawfare Senior Editors Scott R. Anderson, Anna Bauer, and Lawfare Public Service Fellow Lauren Voss

Overview

This episode dives deeply into three critical federal court rulings challenging the Trump administration’s actions on national security, immigration, and trade:

1. Judge Sparkle Sukhnanan’s TRO blocking the removal of migrant children to Guatemala
2. Judge Breyer’s ruling on the illegality of federal deployments of the National Guard and Marines in Los Angeles under the Posse Comitatus Act
3. The Federal Circuit’s decision invalidating Trump’s tariffs imposed under the International Emergency Economic Powers Act (IEEPA)

Each segment features substantial legal analysis, procedural breakdowns, and important context for understanding what comes next in these high-stakes policy disputes.

Key Discussion Points and Insights

1. Emergency TRO Halts Plan to Send Migrant Children to Guatemala

[02:32 – 22:21]

Background and Urgency

• Anna Bauer recounts the emergent nature of the case, LGML et al. v. Christi Nome, where late-night filings sought to block the Trump administration from deporting unaccompanied migrant children to Guatemala.
• Judge Sparkle Sukhnanan ("the best name on the federal bench" per the hosts) was on holiday duty when alerted to the situation—children being removed from facilities for immediate deportation—with legal uncertainty around the statutory authority for such actions.

“The attorneys and care facilities started receiving notices that the children were going to be moved…with the intention of putting them on planes.”
— Anna Bauer [05:48]

Legal Arguments & Court’s Response

• Government lawyers cited Title 6, Section 279 as authority for reunifying children with parents abroad, but plaintiffs countered that this would undermine other statutory protections (e.g., the Immigration & Nationality Act and the Trafficking Victims Protection Act).
• Judge Sukhnanan did not find government arguments credible and was proactive:
  • Issued a written TRO before the hearing, not just an oral order.
  • Firmly required the government to file status reports on return of the children.

“It makes a difference that she did it in writing rather than an oral opinion…”
— Benjamin Wittes [12:11]

• The case has since been reassigned to Judge Tim Kelly, a Trump appointee, but the TRO and briefing schedule remain for now.

Notable Quotes & Judicial Tone

• Judge Sukhnanan’s approach: “She had learned from the situation with Judge Boasberg…that you kind of have to keep tabs on the government because the presumption of regularity has been obliterated at this point.”
  — Anna Bauer [17:53]
• “This is what it looks like when a judge does not attach a presumption of regularity…”
  — Benjamin Wittes [18:49]

Next Steps

• Briefing scheduled for Friday (date may shift)
• Potential for emergency government appeal, but as of the episode, no evidence of further deportation attempts

2. Judge Breyer Strikes Down Federal Troop Deployment in Los Angeles under the Posse Comitatus Act

[22:21 – 41:56]

Legal Holding & Impact

• Judge Charles Breyer found that the deployment of National Guard and active federal troops in Los Angeles, under President Trump’s orders, violated the Posse Comitatus Act (PCA) which restricts the use of the military in domestic law enforcement.
• Injunction against further deployments stayed until September 12.

“Justice Breyer came out and held that the federal deployment of National Guard and active duty troops in California violated the Posse Comitatus act with their actions.”
— Lauren Voss [23:04]

Legal Reasoning and Exceptions

• The administration argued for an inherent “protective power” (from a 1971 OLC/DOJ opinion) to protect federal interests, but Breyer found:

  • The PCA only allows for explicit constitutional or legislative exceptions.
  • Statutes cited (e.g., 10 USC §12406) are mobilization authorities, not mission authorities.

• Breyer’s opinion: If the “protective power” or the President’s inherent authority was as broad as asserted, it would swallow the PCA entirely.

“If the IRS data says people are using tax shelters, you could claim that you're unable to execute the tax laws…shows you the extremes here.”
— Lauren Voss [26:30]

Challenges and Skepticism about Longevity of Ruling

• Wittes challenges the panel: “This will get reversed by the Ninth Circuit, and if it doesn’t, it’ll get reversed by the Supreme Court because the Posse Comitatus Act actually doesn’t prevent the President from doing… jack shit.”
  — Benjamin Wittes [31:49]

• Scott R. Anderson and Lauren Voss note the issues:

  • Whether there is a viable cause of action against executive branch deployment (is the PCA only a criminal law?).
  • Courts may find the issue moot as deployment winds down.

Implications & Wider Application

• Unclear application to DC Guard; legal basis for DC deployments is different, and “the national guard in D.C. are not doing law enforcement functions…so you don’t have to get to the issue of whether or not the PCA applies because they're not violating it.”
  — Lauren Voss [41:45]

Next Steps

• Expected Ninth Circuit appeal; timing discussed as 60 days to file

3. Major Federal Circuit Ruling Strikes Down Trump Tariffs Under IEEPA

[41:56 – 58:28]

The Decision and the Major Questions Doctrine

• Scott R. Anderson explains that the Federal Circuit, en banc, held that:
  • IEEPA does not clearly authorize broad tariff actions, especially as undertaken by the Trump administration on the grounds of national security.
  • The court stressed the “major questions doctrine,” established by recent Supreme Court cases, which requires clear congressional authorization for executive actions with vast economic/political significance.

“These are clearly things that fall into the major questions doctrine category…So this kind of has to implicate major questions doctrine…”
— Scott R. Anderson [43:40]

• Four concurring judges would have gone even further, suggesting the President cannot impose any tariffs under IEEPA.

Dissenting Views

• Four dissenters argue that foreign affairs deference is proper, pointing to the “well-established” tradition of presidential leeway in such matters, and claiming the non-delegation doctrine shouldn't apply in the foreign context.

Supreme Court Prospects

• Wittes is skeptical the decision will stand: “The Supreme Court’s going to take one look at this and they’re going to say the major questions doctrine is about restraining the regulatory state. It’s not about… the national security sphere…”
  — Benjamin Wittes [49:02]

• Anderson is less certain: “This court is actually not that friendly to broad foreign affairs deference to the executive branch… It is a lot of competing interests, competing legal trends intersecting here.”
  — Scott R. Anderson [50:55]

Next Steps

• Cert petition expected, but may be delays due to related litigation (notably in the D.C. Circuit)
• Possible remand for new remedy in light of recent Supreme Court decisions on scope of injunctions (Casa v. Trump)

Notable Quotes & Memorable Moments

• On the proactive judiciary:
  “She [Judge Sukhnanan] kept a very tight leash on the government…every few hours asked the government to provide a status report…”
  — Anna Bauer [18:21]

• On the Posse Comitatus:
  “I have exactly zero experience with a successful Posse Comitatus act claim… it never actually means that you can’t do whatever the President is doing.”
  — Benjamin Wittes [31:49]

• On predicting the Supreme Court:
  “Do you doubt that there are five votes on the Supreme Court for that position?”
  — Benjamin Wittes on presidential tariff authority [50:51]
  “I do. I’m not… highly confident about it…this court is actually not that friendly to broad foreign affairs deference…”
  — Scott R. Anderson [50:55]

• On hedge fund bets:
  “Apparently you can now bet on that then with real money—there are people who are doing trades on this…”
  — Anna Bauer [53:38]

Timestamps for Key Segments

• [02:32] – Setup of the TRO in LGML et al. v. Christi Nome
• [05:48] – Timeline of the emergency filings & TRO by Judge Sukhnanan
• [12:11] – Legal arguments: government rationale & judicial skepticism
• [18:49] – The implications of a judge not granting the presumption of regularity
• [22:21] – Judge Breyer's ruling on National Guard deployment in Los Angeles
• [29:01] – Legal theory: protective power & exceptions to PCA
• [31:49] – Skepticism about Posse Comitatus Act enforcement
• [41:56] – Tariffs: Federal Circuit decision, major questions doctrine
• [49:02] – Predictions for the Supreme Court on executive national security authority
• [53:38] – Conversation about public speculation and trading on outcomes
• [54:59] – Next steps in each major case

Conclusion

This episode captures a pivotal moment in the ongoing checks on presidential power in immigration, domestic security, and trade. The participants offer rigorous legal insight, acknowledge complex procedural dynamics ahead, and remain candid about their skepticism regarding the longevity of some of these court victories against the Trump administration’s aggressive assertions of statutory and constitutional authority.

Listen for: Procedural breakdowns, sharp skepticism, and the rare sight of federal courts actually hampering a president's sweeping actions—whether or not it lasts.