On Saturday, President Donald Trump called 2,000 California National Guard troops into Los Angeles in response to growing protests against the administration’s worksite immigration raids. The peaceful demonstrations had started on Friday following reports of enforcement crackdown operations targeting undocumented immigrants across local businesses in downtown LA and near a Home Depot in the heavily immigrant suburb of Paramount.
A presidential memo called the troops into federal service to quell a supposed “rebellion” and protect US Immigration and Customs Enforcement and other government officers, as well as federal property. The order also authorized the Secretary of Defense to employ members of the Armed Forces to conduct “military protective activities.”
This is the first time since 1965 that a president has deployed federalized National Guard personnel without the request from a governor. California Governor Gavin Newsom said the president is responsible for a “manufactured crisis” and vowed to sue the Trump administration over what he called a “serious breach of state sovereignty.” (Trump said, in response, it would be good to arrest Gov. Newsom.) Los Angeles Mayor Karen Bass attributed the intensified clashes between protesters and law enforcement to the immigration raids and an “escalation that didn’t have to happen.”
On Monday, Mother Jones spoke with Chris Mirasola, a University of Houston assistant law professor who focuses on the law regulating military deployments within the United States, about the statutory authority and legal theory the Trump administration has invoked, the limits of what the National Guard troops can do on the ground, and the potential for more aggressive actions by the federal government.
What is the legal rationale and authority that the Trump administration has invoked to deploy 2,000 members of the California National Guard to Los Angeles?
The president is doing two things in this presidential memorandum. First, and this is implicit in the text of the memo, he’s relying on a theory of inherent constitutional authority to use the military to protect federal functions, persons, and property. You won’t find this text anywhere in a statute or in the text of the Constitution. Instead, it’s been implied by executive branch lawyers.
The second is a statutory authority to bring these 2,000 National Guard personnel onto federal duty orders. As a general matter, members of the National Guard are civilians—so they need some kind of order to bring them into a state duty status or a federal duty status. The president’s relying on this statute, 10 U.S.C. 12406, to bring them into a federal duty status.
It’s this statute—that talks about rebellion—that has been particularly controversial.
In your recent Lawfare article, you write that this inherent constitutional authority theory—known as “protective power”—has a “twisted history.” Why is that?
The earliest antecedent to this legal theory was in 1850 by President Millard Fillmore, who asserted an inherent constitutional authority to use the military to enforce the Fugitive Slave Act in Boston in the face of the refusal of state authorities to detain an accused enslaved person, Shadrach Brown. President Millard Fillmore was the first to assert this kind of inchoate constitutional power to use the military to detain this man so he could be essentially deported back into slavery in the South. Those are the historical roots of this power.
Over time, the executive branch has, in some respects, changed its understanding of the legal basis for this authority. Now, the Office of Legal Counsel in the Department of Justice tries to link this theory of presidential power to the text of the Take Care Clause, for example, in ways that are pretty different from what we originally saw. When I talk about the conflicted, convoluted history, it’s largely due to the fact that the executive branch has been relatively inconsistent in how it’s justified this expression of presidential power. It was the same theory of constitutional power that the Trump administration invoked during the 2020 Black Lives Matter protests.
Under the presidential memorandum signed on Saturday, what can these National Guard troops do and what can’t they do?
The big dividing line is that the National Guard can’t do any law enforcement activity. The executive branch has traditionally understood the protective power to include actions that fall short of what is prohibited by what’s called the Posse Comitatus Act, a very old statute that prohibits using the military for domestic law enforcement functions.
It means that the National Guard currently can’t be used to conduct arrests. It can’t be used to conduct an immigration raid. Instead, what they can do are things like ensure that no bodily injury is done to an ICE officer, or to prevent protesters from forcibly entering the federal detention facility.
Some have observed that the deployment of these federalized troops could be a “precursor” to more aggressive actions by the government in the event of escalating violence, including potentially invoking the Insurrection Act. How do you assess that risk?
I see these authorities as existing on an escalation trajectory, where the far end of that trajectory culminates in an Insurrection Act. I could imagine them wanting to incrementally move along this escalation trajectory from something more minimal like what we’re seeing now to something more robust later. Because if they’re worried about litigation in an Insurrection Act context, then what you want is a record of lesser actions failing in some way, right?
Even amongst folks who are really bullish on using the military within the United States, there is a reluctance on using active duty military for this kind of domestic response and instead preferring a more minimal use of the National Guard. But on the other hand, [the administration has] been incredibly bullish on using the military in a far broader range of domestic contexts than we’ve seen historically. Their appetite for using the military far exceeds anything that I can think of meaningfully past World War II. There has generally since the worst of the military responses to the Vietnam War been an unwillingness across parties to use the military when there are domestic protests or unrest unless absolutely necessary. And that is just not this administration’s understanding of the role of the military in the United States.
As the situation continues to develop on the ground, what warning signs will you be paying attention to?
First, whether there are additional National Guard deployments to cities beyond LA in response to these protests. That would be incredibly concerning as this proliferates. The second thing I’m looking at is the scope of activities that these National Guard are doing. Do they remain in the defensive posture that we’ve seen over the past 24 hours, or do we see pressure for them to do more than what has historically been authorized under the protective power?
The third thing I’m looking at is whether the Pentagon moves beyond using the National Guard to using active duty forces for these activities—because the protective power is worded broadly enough to contemplate using National Guard or active duty personnel, and that would be also escalatory.
The skill set that is needed to de-escalate these kinds of interactions with civilians is not part of the usual training of a soldier, an airman, a Marine. This is an area of incredible concern, especially if these missions are being developed on the fly without sufficient time for the Pentagon to develop detailed rules for the use of force.
Finally, there’s the possibility ever present, as long as these protests are continuing, or if they worsen, that the president decides to invoke the Insurrection Act.
Which was last invoked during the 1992 Los Angeles riots…
The issue that we see in this entire area of law is that we have statutes which are incredibly old, using language that is antiquated with incredibly significant delegations of authority and discretion to the president in ways that we don’t tend to see in domestic legislation.
A lot of the reforms that people have been urging for is a tightening up of all of these statutes to make the president have to show something much more definitive about the federal government’s incapacity before the military is used. It’s the failure of the past decade of politics that we don’t have that as a guardrail against the excesses that we’re seeing right now. In many ways, it is on Congress, which has not been able to muster the political wherewithal to make this a priority.
One of the greatest checks on the president’s ability to use the military in domestic response situations is Congress’s power of the purse. These deployments are very expensive and they were not budgeted for. If they expand, they’re only going to get more expensive, which is going to require the Pentagon to either move money around or to ask Congress for more money. Those are moments of choice when Congress can decide whether to honor that request and, if they don’t, then the trade-off that the Pentagon has to make between their traditional foreign affairs and national security functions and the domestic missions that we’re seeing right now just comes into starker relief. It makes the decisions more difficult.
This post has been syndicated from Mother Jones, where it was published under this address.