Trump’s National Guard Order Tests the Limits of the Law

A closer look at the implications of Trump’s federalization of the National Guard amid protests in California, possibly violating the Posse Comitatus Act.

On Sunday, the President of the United States issued the following decree:

I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.

The President federalized 2,000 National Guard troops from the state of California for 60 days or “at the discretion of the Secretary of Defense.”

…Why is he doing this?

…On Friday, June 6, ICE agents showed up at the Fashion District in downtown Los Angeles where dozens of people had gathered. Additional federal agents arrived in riot gear to help clear a path for two vans leaving the area. This was one of several ICE raids in the area.

A massive crowd began swelling outside the Los Angeles federal building. The Department of Homeland Security fired pepper balls into the crowd, which was eventually dispersed.

…On Saturday, June 7, clashes broke out in Paramount, as protesters were responding to a planned raid at a Home Depot. Protesters threw objects while law enforcement fired tear gas. Later that night in Compton, protesters lit a car on fire, then threw rocks, bottles, and fireworks at officers while law enforcement fired flash-bang grenades and rubber bullets at the protesters.

…At 9:00 p.m. eastern (6:00 p.m. pacific), over the objections of Governor Gavin Newsom and Los Angeles Mayor Karen Bass, Trump signed the above-mentioned memo, invoking 10 U.S.C. § 12406:

Whenever--

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

NOTE: The Commanding General of the District of Columbia National Guard is Major General John C. Andonie.

There’s a problem here.

By federalizing the National Guard under 10 U.S.C. § 12406, they become Title 10 troops like active-duty Army personnel. This also makes them subject to the Posse Comitatus Act (18 U.S.C. § 1385), prohibiting the use of federal military personnel for domestic law enforcement unless specifically authorized by the United States Constitution or the U.S. Congress.

Had California Governor Gavin Newsom issued Title 32, U.S. Code § 502(f), the National Guard would have remained in state control and would not be subject to the Posse Comitatus Act.

So the question is: Is Donald Trump’s order illegal, and will there be repercussions when members of the National Guard follow through on this order?

In the meantime, Secretary of Defense Pete Hegseth is threatening to send Marines from Camp Pendleton.

National Guard troops are being deployed Sunday to a relatively calm Los Angeles. Protests are planned later in the day.

My Two Cents

The clashes have been localized and haven’t really escalated into riots. Law enforcement has the capability and resources to limit these clashes from getting out of control. Adding additional federal forces, on a murky legal order, could have the reverse effect, inflaming the situation.

Furthermore, federalizing the National Guard and possibly violating the Posse Comitatus Act challenges the notion that the rule of law still matters in this country. It’s ironic the White House Twitter account posts a tweet saying, “LAW AND ORDER”, but blatantly breaks the law when convenient.

Even if and when the situation calms, the deeper causes fueling this fire will still remain.