The judge's temporary restraining order:
Regarding the Trump's assertion of a "rebellion":
".....the Court observes that the dictionary definitions from the turn of the century share several key characteristics. First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue."
The ruling goes on to describe why DOJ failed to present evidence of a rebellion.
Freedom of Expression:
"Moreover, the Court is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.
.....
"In short, individuals’ right to protest the government is one of the fundamental rights protected by the First Amendment, and just because some stray bad actors go too far does not wipe out that right for everyone. The idea that protesters can so quickly cross the line between protected conduct and “rebellion against the authority of the Government of the United States” is untenable and dangerous. In a short paragraph, Defendants suggest that even if there was no rebellion that would justify federalizing the National Guard, there was still a “danger of a rebellion,” which would satisfy § 12406. Opp. at 16. This argument cannot withstand scrutiny."
President's ability to Execute the Laws:
"Defendants argue that they satisfy this condition because the Los Angeles protests threatened the safety of federal law enforcement personnel and interfered with the sites where ICE agents were enforcing alien removal laws. Opp. at 16. Defendants concede that ICE succeeded in arresting 44 people on June 6, but insist that “that limited success came with the risk of danger,” and that, had the protests not interfered with their operations, ICE “would have been able to carry out additional execution-of-the-laws activity.” Id. Whether ICE could have detained more people in the absence of the protests is mere conjecture—Defendants provide no support for that assertion."
Even assuming that Defendants are correct, however, the statute does not allow for the federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the laws. Nor does the statute allow for the federalizing of the National Guard when the President faces some risk in executing the laws, though of course federal employees should never have to fear danger when performing their jobs. The statute requires that the President be “unable” to execute the laws of the United States. That did not happen here
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