156. Federalizing the California National Guard

President Trump's Saturday night "memorandum" federalizing 2000 California National Guard troops is a tentative step toward abusing authorities for domestic use of the military, but a dangerous one.

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I wanted to put out an extra issue this evening in response to a “Presidential Memorandum” signed by President Trump, which federalizes 2000 members of the California National Guard and directs them to support Department of Homeland Security activities (i.e., ICE raids) in and around Los Angeles. All of this is in response to protests against those very ICE raids today that, in several cases, turned violent (with at least some evidence that the violence came principally from federal officers).

There are a lot of misunderstandings and misinformation out there about what Trump has and hasn’t done, and given that I’ve covered these topics before, it seemed worth a quick explainer on why this move is a big deal—but why it also is not as drastic an escalation (or abuse) as many had feared, at least not yet.

The TL;DR here is that Trump has not (yet) invoked the Insurrection Act, which means that the 2000 additional troops that will soon be brought to bear will not be allowed to engage in ordinary law enforcement activities without violating a different law—the Posse Comitatus Act. All that these troops will be able to do is provide a form of force protection and other logistical support for ICE personnel. Whether that, in turn, leads to further escalation is the bigger issue (and, indeed, may be the very purpose of their deployment). But at least as I’m writing this, we’re not there yet.

President Trump with the California National Guard in 2020. Credit: Doug Mills/The New York Times

I. What Trump Did (and Didn’t) Do

Back in April, I went into some detail on the key authorities authorizing (and limiting) domestic use of the military. In a nutshell, the Posse Comitatus Act of 1878 generally bars domestic use of federal (but not state) troops for civilian law enforcement, but it has a couple of exceptions—the most well-known of which is the Insurrection Act. My April post goes into much more detail about the history, scope, and controversy surrounding the Insurrection Act (which has not been invoked by any President since 1992); the key point for present purposes is that President Trump has not invoked it here.

Instead, President Trump has federalized 2000 National Guard troops pursuant to 10 U.S.C. § 12406, which provides, among other things, that “when the President is unable with the regular forces to execute the laws of the United States . . . [he] may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to . . . execute those laws.”¹

As the brevity of this statute should make clear, this provision provides no additional substantive authority that the federal government did not already possess. There’s nothing these troops will be allowed to do that, for example, the ICE officers against whom these protests have been directed could not do themselves. And because of the Posse Comitatus Act, the reverse is not true; there is plenty that these troops cannot legally do that the ICE officers can (once they are federalized, National Guard troops become functionally indistinguishable from federal regulars for purposes of the Posse Comitatus Act).

Thus, nothing that the President did Saturday night would, for instance, authorize these federalized National Guard troops to conduct their own immigration raids; make their own immigration arrests; or otherwise do anything other than, to quote the President’s own memorandum, “those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection and safety of Federal personnel and property.”

On its face, then, the memorandum federalizes 2000 California National Guard troops for the sole purpose of protecting the relevant DHS personnel against attacks. That’s a significant (and, in my view, unnecessary) escalation of events in a context in which no local or state authorities have requested such federal assistance. But by itself, this is not the mass deployment of troops into U.S. cities that had been rumored for some time.

II. Why the Memorandum is Still Alarming…

That said, there are still at least three reasons to be deeply concerned about President Trump’s (hasty) actions on Saturday night:

First, there is the obvious concern that, even as they are doing nothing more than “protecting” ICE officers discharging federal functions, these federalized troops will end up using force—in response to real or imagined violence or threats of violence against those officers. In other words, there’s the very real possibility that having federal troops on the ground will only raise the risk of escalating violence—not decrease it.

Second, and related, there is the possibility that that’s a feature, and not a bug—that this is meant as a precursor, with federalizing a modest number of National Guard troops today invoked, some time later, as a justification for more aggressive responses to anti-ICE protests, including, perhaps invocation of the Insurrection Act. In other words, it’s possible that this step is meant to both be and look modest so that, if and when it “fails,” the government can invoke its failure as a basis for a more aggressive domestic deployment of troops. What happens in and around Los Angeles in the next few days will have a lot to say about this.

Third, and perhaps most significantly, as I wrote in April, “domestic use of the military can nevertheless be corrosive—to the morale of the troops involved, all of a sudden, in policing their own; to the relationship between local/state governments and the federal government; and to the broader relationship between the military and civil society.” Even uses of the military for relatively modest purposes can have those corrosive effects—especially where, as here, it seems so transparently in service of the President’s policy agenda, and not necessarily the need to restore law and order on the streets of America’s second largest city.

Even as someone who thinks the federal government has both the constitutional and statutory authority to override local and state governments when it comes to law and order (see, e.g., President Eisenhower sending troops into Little Rock to enforce Brown), it seems to me that there is something deeply pernicious about invoking any of these authorities except in circumstances in which their necessity is a matter of consensus beyond the President’s political supporters. The law may well allow President Trump to do what he did Saturday night. But just because something is legal does not mean that it is wise—for the present or future of our Republic.

A lot depends on what happens next. For now, the key takeaways are that there really isn’t much that these federalized National Guard troops will be able to do—and that this might be the very reason why this is the step the President is taking tonight, rather than something even more aggressive.

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1. The provision also provides that “Orders for these purposes shall be issued through the governors of the States,” but my own view is that this is better understood as a purely administrative provision than it is as giving a substantive veto to the governor. (Imagine a governor who was thwarting the enforcement of federal civil rights laws, and how Congress would not have wanted to empower the governor to resist such federalization.) For more on the background, see this 2020 Just Security post by Joseph Nunn.