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President Donald Trump has built his presidency around stretching the bounds of presidential authority, and his response to protests over an immigration crackdown in Los Angeles is no exception.
He invoked a rarely used law to federalize the National Guard over the objection of Democratic California Gov. Gavin Newsom and local officials, who did not want to bring in the military. Trump may have the authority to take over the National Guard, but the move highlights the two-track command structure of National Guard units, which are normally deployed by a state’s governor.
The law cited by the White House to take control of the National Guard cites three reasons for that extraordinary step to be taken:
the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
the President is unable with the regular forces to execute the laws of the United States
“It sounds like all three to me,” said Defense Secretary Pete Hegseth, when asked during congressional testimony which reason the White House was citing.
Thus, to the White House, protests launched by job site and Home Depot deportation raids are the equivalent of invasion, rebellion and something the US government doesn’t feel like it can handle without the military.
It’s a far cry from Trump’s first term, when his Defense Secretary Mark Esper said, “The option to use active-duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations,” when the administration considered using the military to address widespread protests related to the killing of George Floyd in Minneapolis in 2020.
The law also requires orders to be sent through state governors, but rather than cooperating, Newsom has complained the White House has illegally overstepped its authority and put troops on the street without adequate plans to feed or house them.
The National Guard — the modern version of a state militia — has roots that predate the founding of the country. A series of laws beginning in the early 20th century gave the president and the federal government more power to standardize the National Guard, but they are still mostly supposed to be a state force.
“There’s a tension,” said former Rep. Adam Kinzinger, a CNN political commentator who also served in the Illinois Air National Guard. “How is the National Guard actually a militia if the president, against the wishes of the governor, can activate that militia against its own state?”
Unless Trump ultimately invokes the Insurrection Act, Kinzinger said, the use of the National Guard must be extremely limited to roles such as guarding federal buildings.
The Insurrection Act is a rarely invoked law, passed in 1807 and updated during Reconstruction, that dictates the extreme situations in which US troops can be used on American streets. Trump did not cite the Insurrection Act when he federalized California’s National Guard.
Hegseth said the military — Trump also called up Marines from Twentynine Palms, California — is required to protect ICE agents doing their jobs on the streets of Los Angeles.
In pictures: Burning cars and tear gas in LA protests
Mobilizing the military to act in US cities is not unprecedented in US history.
President Dwight Eisenhower called up the 101st Airborne Division to protect Black students in Little Rock, Arkansas, during the integration of public schools in 1957.
The most recent example of the National Guard being deployed in a state over the authority of its governor was in 1965, during the Civil Rights Movement, when President Lyndon B. Johnson cited the Insurrection Act to deploy the National Guard to protect marchers led by the Rev. Martin Luther King Jr. in Alabama.
The most recent example of the Insurrection Act being cited to deploy the National Guard came in the early 1990s, when California Gov. Pete Wilson asked the federal government for help responding to riots after four Los Angeles Police Department officers were acquitted in the horrific beating of Rodney King. Those riots were widespread and deadly, in contrast with the smattering of skirmishes in Los Angeles this week.
Each of those instances involved the Insurrection Act, a law passed in 1807.
While Trump has called protesters and rioters “insurrectionists,” he has not technically invoked the Insurrection Act.
People can legitimately debate whether the Los Angeles protests warrant federalizing the National Guard, but Trump cited no law in giving Hegseth authority to mobilize regular military to help in the response.
Approximately 700 Marines were mobilized.
What may be alarming about Trump’s order, according to Elizabeth Goitein, an expert on presidential emergency powers at the Brennan Center for Justice, is that he did not specifically mention Los Angeles, which means he could have essentially OK’d the use of the military across the country for protests against ICE actions that have not yet occurred.
“ICE activity is happening across the country, and will likely draw protests in many places,” Goitein wrote in a detailed thread on social media. “Trump is authorizing military deployment nationwide, regardless of whether protests involve violence *or are even happening yet.*”
That means Americans should be prepared for the possibility of more deployments around the country, something that runs against the American tradition of separating military force from police force.
Sending troops and Marines to Los Angeles was necessary, according to Rep. Zach Nunn, a Republican congressman from Iowa and a member of his state’s National Guard.
“We have a sanctuary city in LA that refuses to stand with federal law enforcement. We have cops who are bleeding in the street,” he told CNN’s Kasie Hunt, referencing skirmishes between law enforcement and protesters.
Trump said more service members could be on the way. “We have to make sure there’s going to be law and order,” the president told reporters at the White House on Monday.
Even if the Marines aren’t directly involved in policing or interacting with protesters, their presence challenges what has been normal in the US.
“An army turned inward can quickly become an instrument of tyranny,” Goitein wrote in her thread. “That’s why domestic deployment should be an absolute last resort.”
California is suing the federal government for overstepping its authority, and Newsom invited Trump to arrest him, an idea the president embraced when taking questions from reporters at the White House, but which would be unprecedented since the Civil War.
After some Trump supporters argued he should have invoked the Insurrection Act to delay certification of the 2020 election, Goitein was among the many scholars who argued that the laws concerning extreme uses of presidential power needed to be updated and clarified.
There is one law, the Posse Comitatus Act, that largely bars the use of the military inside the US.
But there is also the Insurrection Act, which has not changed much since the 1870s, when it was used by President Ulysses S. Grant in an attempt to smother the early Ku Klux Klan.
That’s when Congress amended the Insurrection Act to give presidents more authority. But it did not define the term “insurrection” or lay out how presidential power should be curbed. Grant went as far as to suspend writ of habeas corpus, the legal principle by which people can’t be imprisoned without trial or appearance in court.
Law enforcement should be able to handle this
Critics of the Trump administration argue his actions to militarize the situation in Los Angeles are intended as a sort of theater but are making the situation worse.
“We have domestic law enforcement agencies capable of handling these problems on almost every circumstance,” said Kori Schake, a senior fellow at the American Enterprise Institute, appearing on CNN on Monday.
“The standard for invoking the Insurrection Act has historically been very high, and it would be an ominous sign for the Trump administration to invoke it in these circumstances,” Schake said.
