Under ordinary circumstances, federal troops would be deployed to aid or assist in state efforts, says Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law.
President Donald Trump’s deployment of federal National Guard troops to California without a request from the governor sets up a legal clash over the president’s authority for such a drastic maneuver, says Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law.
“It’s a very complicated topic,” he says. “Most of the time, when the National Guard is nationalized — unless it’s a situation in which a state is refusing to enforce the federal laws — the president typically waits and gets a request from the governor before going in and doing something like this.”
Following a series of protests in response to an ongoing immigration crackdown in Los Angeles, Trump ordered at least 2,000 National Guardsmen to be sent to California to protect immigration enforcement agents over the weekend. The White House cited recent protests of Immigration and Customs Enforcement raids as a reason for the move.
“In recent days, violent mobs have attacked ICE officers and federal law enforcement agents carrying out basic deportation operations in Los Angeles, California,” the White House said in a statement. “These operations are essential to halting and reversing the invasion of illegal criminals into the United States.”
Some of the protests turned violent over the weekend, pitting demonstrators against law enforcement agents in clashes that left streets littered with debris, vehicles burned and buildings vandalized. Some 150 individuals were arrested Friday, with more arrests taking place over the weekend in places like San Francisco.
The scene is reminiscent of the last time a president ordered the federalization of National Guardsmen to quell protests, which took place in 1992 following the beating of Rodney King by police — also in Los Angeles.
Then President George H. W. Bush used the Insurrection Act of 1807 as justification to send in the national troops. So far, Trump has not invoked the 19th-century law, which Paul says encompasses “a series of statutes” designed to “call forth militia” for the purposes of suppressing an insurrection, or to see that laws are “duly executed.” It’s one mechanism by which a president can deploy federal troops on U.S. soil.
Trump did invoke a separate statute — Section 12406 of Title 10 of the U.S. Code — which grants authority to “repel [a] invasion, suppress [a] rebellion” or execute federal law, in the action.
Under ordinary circumstances, Paul says the federal troops would be deployed to aid or assist in state efforts. California Gov. Gavin Newsom called Trump’s deployment of the National Guard “illegal, immoral and unconstitutional.”
On Monday, the state of California filed a lawsuit against the administration in response, setting the stage for a potential legal battle.
“These troops, so the president says, are supposed to just help Immigration and Customs Enforcement enforce the federal law that allows them to deport people who aren’t here legally,” Paul says.
So, is Trump’s move legal?
“If the president believes that the state is not executing federal law, then he has the authority to do this,” Paul continues. “But just because the president has this authority doesn’t mean it’s the right thing to do.”
Los Angeles Mayor Karen Bass said the move felt like it was designed to wreak havoc in the city, and Newsom called the situation “a manufactured crisis” and “a breach of state sovereignty.”
While the National Guard, a military reserve force composed of service members from all U.S. states and territories, serves a range of functions in the domestic sphere, civilian law enforcement is typically not one of them. The Posse Comitatus Act, enacted in 1878, prohibits federal troops from “regular civil law enforcement” except in circumstances approved by Congress.
The Posse Comitatus Act applies expressly to the Army and Air Force, while another statute — Section 275 of Title 10 of the U.S. Code — covers the Navy and Marine Corps.
Paul says that the move “shifts the balance of state control over law enforcement to federal enforcement,” but in ways so far unclear.
“Just because the National Guard is there doesn’t mean that they are authorized to do anything that traditional law enforcement could not do,” Paul says. “This isn’t martial law, as some might suggest. They can’t all of a sudden arrest people or search homes without warrants. They can’t just disregard the Constitution.”