According to constitutional law experts, President Trump’s decision to send 2,000 National Guard members to Los Angeles is pushing the boundaries of what the military may legally do to police domestic laws on American streets.
Amidst a surge of public demonstrations against the administration’s mass deportation policy, Trump has assigned the army a restricted mission: to safeguard federal immigration officials and facilities. Trump used a clause in the federal statute that authorizes the use of the National Guard to suppress domestic disturbance to legitimize the deployment.
Legal experts, however, have cast doubt on Trump’s professed reasoning, suggesting it may be an artificially constructed justification for such an unprecedented and shocking action. Some are concerned that the true goal is to gain leverage over blue states that have opposed Trump’s immigration policies. Whether the goal was to escalate tensions in Los Angeles or not, the result might be the same: Trump may deploy additional soldiers or expand their mission, creating a vicious cycle.
Chris Mirasolo, a professor of national security law at the University of Houston, stated, “It does appear to be largely pretextual, or at least motivated more by politics than on-the-ground need.”
Gavin Newsom, governor of California, criticized the deployment as “unlawful” and announced his intention to sue on Monday.
“This pertains to inclinations toward authoritarianism. Command and control is at the heart of this. It everything comes down to power. An egocentric issue, according to Democrat Newsom’s Sunday MSNBC statement. “There seems to be a pattern here.”
It all comes down to whether or not the president can send in the troops for domestic missions. The Posse Comitatus Act of 1878 is a federal statute that prohibits the president from enforcing domestic laws through the use of federal forces. These troops include the Army, Navy, Marines, Air Force, and Space Force.
U.S. military can be deployed domestically in some extraordinary situations, though. The Insurrection Act stands out as an exception; it gives the president the power to use military force in response to insurrections, “domestic violence,” or plots that threaten the liberties guaranteed by the Constitution or the laws of the republic. Trump did not use the Insurrection Act to ignore state election officials and effectively nullify the 2020 presidential election results, despite the urging and expectations of some of his most fervent fans at the conclusion of his first term. If reelected in 2024, he promised to use the legislation to quell protests.
However, the Insurrection Act has not been triggered by Trump at this time. On Saturday, he instead referenced a different statute: a brief clause in the United States code that authorizes the president to employ the National Guard (but not any other kind of military force) to quell the “danger of a rebellion” or to “execute” federal laws in situations where “regular forces” are inadequate.
Interestingly, his directive hinted that the unrest in Los Angeles was heading toward the status of a “rebellion,” without explicitly calling it that.
“Looking really bad in L.A.,” he wrote on Monday morning, just after midnight. “Imploy the troops.” Additionally, he constantly labeled demonstrators wearing masks as “insurrectionists” and demanded their immediate arrest.
On Sunday, though, Trump denied to reporters that the violence had the hallmarks of an uprising.
Trump also voiced his support for the possibility of Newsom’s arrest on Monday.
The deployment of armed forces against the will of a governor has occurred before Trump took office. That being said, it hasn’t happened since President Lyndon B. Johnson sent in the soldiers to defend civil rights demonstrators in Alabama in 1965. The deployment of military to assist enforce integration of public schools was also authorized by President Dwight Eisenhower, who also ignored the governor of Alabama’s concerns. According to some analysts, presidents may have good reason to take such measures when they see state and local administrations as being uncooperative or ineffectual.
Nearly twenty years ago, when President George W. Bush chose not to enlist the National Guard to restore order in New Orleans following Hurricane Katrina, there was a big political dispute regarding the president’s authority to do so in an emergency. Reportedly, Bush was hesitant to activate the National Guard because of objections from Louisiana Governor Kathleen Blanco and doubts about the president’s authority to do so without her approval.
The 2007 appropriations rider that Congress approved explicitly gave the president that power in the event of “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or Incident” as well as in response to “insurgency, domestic violence, unlawful combination, or conspiracy.”
An extremely wide coalition, including all fifty governors of the United States, demanded the amendment’s repeal, despite the fact that several legal experts said the legislation only restated current law. It was repealed the next year by Congress, enabling the statute to return to its text from the 1950s.
