Trump's ludicrously sloppy legal rationale for occupying LA
It's blatantly illegal. But he's not about to let laws get in his way.
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Donald Trump’s constant willingness to ignore the Constitution and core principles of American democracy means we are forever playing catch-up, stumbling behind while explaining why he absolutely cannot legally do the thing he is doing.
Digging into questions like “can Trump federalize the California National Guard because heavily-armed Immigration and Customs Enforcement officers picked a fight with a few hundred random Californians outside of Home Depot and lost?” is not a thing we should have to do, because the answer is no. The issue is that Trump just does these things anyway and justifies them with incoherent explanations that read as if an especially vicious badger memorized fragments of the Constitution and the US Code.
So, as we barrel toward a military occupation of California — and, really, anywhere else Trump wants — it’s time to figure out what on earth is going on, with two enormous caveats.
First, there are legal scholars who have spent their entire careers studying the deployment of the military on United States soil who are still trying to sort out what is happening. That’s not because they lack expertise, but because the situation is so rare and the administration’s justifications are so sloppy. Second, things are evolving so quickly that explanations quickly become outdated, so one has to try to anticipate the administration’s next wildly illegal move.
Crush state control of the National Guard
Generally, the Posse Comitatus Act prohibits the use of federal troops for civilian law enforcement. State National Guards generally can’t run afoul of the Posse Comitatus Act because they are organized at the state level and report to a governor. That said, there are exceptions where, speaking only hypothetically, it would be completely legal for Trump to send National Guard members and even active duty troops to California. Identifying those possible situations is necessary to understand the relevant laws, but there’s no question that none of those situations currently exist in California or anywhere else.
The initial federalization of the California National Guard already happened on June 7 with Trump’s memo invoking 10 U.S.C. 12406. That allows state National Guards to be used in federal service for very limited reasons, but requires orders to be issued via the governor, a thing that definitely did not happen here.
In fact, when Department of Homeland Services flack Tricia McLaughlin was asked yesterday if the federalization orders were issued through California Gov. Gavin Newsom as required, McLaughlin’s answer was “they are issued by the president of the United States.”
These comments are a blatant refusal to acknowledge the plain text of section 12406 even as the administration purports to rely on it to justify its actions.
Trump could also invoke the Insurrection Act, which would allow him, in certain circumstances, to deploy a state National Guard even over the objection of the governor. Active-duty troops can only be sent in if the Insurrection Act is invoked, though it appears the Trump administration is just bypassing that step and sending in 700 Marines anyway.
Even if the administration hadn’t skipped getting Newsom’s agreement to federalize state National Guard members, the limits in section 12406 still apply. That section can only be used when (1) there is an invasion or danger of invasion by a foreign nation; (2) there is a rebellion or danger of rebellion against the government; or (3) the president cannot execute federal laws with the regular forces available. (Section 12406 has only been used once, in 1970, when President Nixon invoked it to have the National Guard help deliver mail during a postal worker strike.)
California’s lawsuit against the administration notes that even Trump’s own memo doesn’t assert California is being invaded. It mentions rebellion, but defines it as: “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”
Under that broad definition, any defiance of a federal law, no matter how fleeting, could be a “rebellion,” even though, as the California complaint points out, that word typically means an organized attempt to use violence to overthrow the government. The Los Angeles protests have been largely peaceful, with only sporadic vandalism, some committed by people unaffiliated with the demonstrations. There is no threat to overturn the government, organized or otherwise.
The administration’s definition is slipshod and ungrounded in law, but that doesn’t mean they didn’t think it through. It’s becoming increasingly clear that Trump believes that any pushback against his administration’s policies is criminal and must be suppressed.
Are the protests preventing the president from executing federal laws with the forces available? Well, not according to California, which would know. On Saturday, at the same time the administration was insisting everything was so out of control that deploying the Guard was necessary, the LAPD was saying that the protests were peaceful and the day’s events had unfolded without incident. California’s lawsuit notes that ICE has continued to act on warrants and make arrests, so nothing about the protests has prevented the execution of those laws.
Even if one of the permissible situations existed and even if Newsom had signed off, under section 12406, federalized National Guard members can’t perform law enforcement duties. They can protect federal forces and property and assist ICE personnel with logistical support, but they can’t arrest people or go on immigration raids. To do that, Trump would need to invoke the Insurrection Act.
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Before we move on to that, though, an important note about Trump’s section 12406 memo. It’s not limited to the California protests. Indeed, California isn’t mentioned in the memo at all. Instead, Trump is trying to use section 12406 as a catch-all for any protest anywhere at any time, saying he can federalize state National Guard “at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”
That reads a lot like Trump believing he can deploy a state National Guard in any state even before any unrest occurs and before ICE is even operating in the state, which is definitely not how this works. If it did, state control over the National Guard would be functionally meaningless.
A vicious circle
It’s honestly a bit curious that Trump hasn’t just invoked the Insurrection Act. He wanted to during the unrest following the murder of George Floyd. This time around, he’s already calling Los Angeles protesters “paid insurrectionists” and “violent, insurrectionist mobs.”
The president can invoke the Insurrection Act at the request of a state governor, which is what happened in 1992. During the Los Angeles riots following the acquittal of the police officers who severely beat Rodney King, President George H.W. Bush ordered the deployment of National Guard troops after Gov. Pete Wilson and Mayor Tom Bradley asked.
If a state doesn’t request it, the president can invoke the Act if unlawful obstructions, assemblies, or rebellion against the government make it “impracticable” to enforce federal laws “by the ordinary course of judicial proceedings.” That’s distressingly vague, as is the third situation, which is that it can be invoked to put down any insurrection or violence if it (1) hinders the execution of state or federal laws in a way that deprives people of their constitutional protections and the state is unwilling or unable to protect that right; (2) obstructs the execution of federal laws or impedes the course of justice under federal law.
The last time the Insurrection Act was used against the wishes of a state was in Alabama in March 1965. Alabama’s avowedly racist governor, George Wallace, initially told President Lyndon B. Johnson he would deploy state troopers to protect civil rights marchers, but then went on television to say he would not. Johnson responded by invoking the Act to deploy the Alabama National Guard.
So, given the vague language of the Insurrection Act, why don’t presidents just use it left and right? There are actually many reasons.
For one thing, it doesn’t allow military personnel to do anything that local or state law enforcement cannot already legally do. It’s not a way to smuggle in martial law. Instead, it’s designed to support state law enforcement efforts or to provide law enforcement a state could legally provide but has refused to do so. Whatever fantasy Trump or Pete Hegseth or Kristi Noem or Tom Homan has about putting blue cities under occupation is just that — a fantasy.
Presidents also don’t generally use the Insurrection Act because in our federalist system, police power rests with the states. Here’s wild-eyed liberal Chief Justice William Rehnquist back in 2000: “We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”
State and local law enforcement officials are also much better at determining what resources are necessary and where. Currently, Trump’s illegal order has diverted 4,000 California National Guard members, out of only 12,212 currently available to deploy. The complaint filed by California says that 4,000 includes a large number of members with specialized training in fire mitigation and suppression. 2,500 guard members helped with firefighting efforts in the devastating Los Angeles County fires earlier this year, but now, at the peak of wildfire season, fully one-third of the Guard is unavailable.
It’s also harder for local law enforcement to coordinate with federal troops than it is to work with other regular law enforcement partners. The administration didn’t even bother to formally inform the LAPD that Marines were being deployed. The chief of police issued a statement saying that the arrival of military forces “presents a significant logistical and operational challenge for those of us charged with safeguarding this city.” He went on to explain that the LAPD and its usual local partners have decades of experience managing these sorts of demonstrations. Now, the LAPD gets to expend resources coordinating with Marines who are not legally allowed to be there and have no particular expertise that makes them useful here.
Marines and other military personnel lack relevant expertise because they are trained only modestly, if at all, in law enforcement. Civilian law enforcement officers are trained from the start, however imperfectly, to uphold constitutional civil rights such as the right to be free from unreasonable search and seizure and the right to due process. Troops are primarily trained to fight armed enemies to whom they owe no constitutional protections. And even if those troops don’t overstep in any way, their presence may still make people feel like they can’t exercise their fundamental rights.
Disliking military intrusion is also somewhat central to the American psyche. The country was founded in part in reaction to the heavy hand the British military used in the colonies. Some of the Bill of Rights reflects this concern, creating protections from just the sorts of things British soldiers did routinely, like taking over private homes and searching residences without a warrant.
Presidents other than Trump have grasped these complexities, or at least listened to other people who did. But the problem, as with so many other things in the Trump era, is that he’s flouting norms, not just laws. If Trump chooses to read the Insurrection Act absurdly broadly, it’s not clear there is an easy way to stop him, particularly given that the conservative majority on the Supreme Court seems eager to let him expand his power.
California’s lawsuit over the section 12406 federalization of its National Guard should be a slam dunk. It’s not even a close question, and the administration has offered no justification for its interpretation. Even if they had gone about things properly, deploying the Marines is illegal, full stop, unless Trump invokes the Insurrection Act.
Yesterday, California asked a federal judge to issue a temporary restraining order barring the deployment of active-duty troops and the illegal federalization of the state National Guard. The judge declined, instead granting the administration’s request for 24 hours to respond to California’s motion and set a hearing for Thursday.
In other circumstances, this wouldn’t be such a frustrating result. Yes, both sides should generally have adequate time to litigate cases, but only one of those sides has illegally sent the military to occupy a major city. Proceeding as if the administration can’t heavily damage Los Angeles in the next 48 hours is absurd given its record flouting court orders.
It’s hard not to assume that the administration’s flagrant overreach is deliberate, especially given the vague language of the Insurrection Act and Trump’s past eagerness to use it. After all, it’s not as if this administration typically behaves cautiously or incrementally.
California is now having to increase its state-level law enforcement presence because Trump’s illegal federalization of the National Guard became the focus of newer, larger protests. Or, as the official state announcement put it: “The state is working with local partners to surge 800+ additional state and local law enforcement officers into Los Angeles to clean up President Trump’s mess.” Deliberately flouting the law and flooding the city with unwanted and unnecessary troops was always going to increase the intensity of the protests which, in turn, allows the administration to keep ratcheting up the number of troops.
Giving the lie to “we’re going after hardened criminals”
The Los Angeles protests kicked off in earnest after ICE targeted day laborers at Home Depot and workers at a garment factory. ICE isn’t going after hardened criminals, but rather after soft targets. It’s the only way they can hit the 3,000 arrests per day that Stephen Miller wants.
The fact that Los Angelenos view immigrants as their community rather than an invading horde seems genuinely difficult for Trump — and Miller — to understand. So, they’ve framed the protests as a terrifying and violent rebellion led by foreigners threatening the city when really it looks more like street vendors and community groups distributing food. The only people Los Angeles is under attack from is the administration.
Trump, better than anyone, knows what an insurrection on American soil really is, and it looks like January 6. A group of his supporters engaged in a concerted, planned effort to block the duly-elected president from taking office. They were heavily armed. They chose to attack the seat of the federal government, breaking in to do so. They threatened elected officials and stopped official proceedings. They attacked police officers. They carried Confederate flags, a literal symbol of treason. They came from outside of Washington DC to terrorize the city.
And of course, in the end, they were all pardoned for their crimes, even those who attacked law enforcement officers. More than anything, that’s what makes this whole thing feel like such a farce.
That’s it for today
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I can remember not that long ago when conservatives spoke of the consitution with such feeling that you almost wondered if they'd fall down and worship it if you held up a copy. If they served in the appropriate jobs they'd tell you how seriously they took their oath to defend it....How times change!
A great article, thank you Lisa! 🙏This is the most dangerous time in US since TACO took office. And unfortunately, it may only get worse. Where is the solidarity from the Democrats? They should all be standing shoulder to shoulder with Newsom in LA, especially the leadership, Schumer and Hakeem. I am watching this from the other side of the Pond, much in solidarity with you all. May you all take care, 🥰