From Liza Goitein, Senior Director of Liberty & National Security for the Brennan Center on BlueSky:
Trump has federalized at least 2,000 National Guard forces and reportedly plans to deploy troops to Los Angeles over Governor Newsom’s objections. If that happens, it will be the first time since 1965 that a president has sent troops into a state without a state request.
That’s alarming enough. But Trump has also authorized deployment of troops anywhere in the country where protests against ICE are occurring or are likely to occur, even if they are entirely peaceful. That is unprecedented and a clear abuse of the law.
To back up: Presidents have deployed troops for purposes of quelling unrest or executing the law only 30 times in U.S. history. The Brennan Center has published a guide compiling and annotating those instances.
Ordinarily using federal troops (including federalized National Guard forces) to suppress civil unrest would be illegal under the Posse Comitatus Act. But Congress can legislate exceptions. The relevant exception here is the Insurrection Act.
https://www.brennancenter.org/our-work/research-reports/insurrection-act-explained
Invoking the Insurrection Act, however, would come with significant political and legal blowback. It hasn’t been used since 1992, when California’s governor requested deployment to help quell LA riots after a jury acquitted police officers who beat Rodney King.
Trump is instead relying on a statute, 10 USC 12406, that allows the president to federalize the Guard when there is a rebellion against the authority of the U.S. government or when “the President is unable with the regular forces to execute the laws of the United States.”
Previous presidents have used this authority to call up Guard forces in order to deploy them under the Insurrection Act. 10 USC 12406 has not historically been treated or used as an independent authority. Trump’s move is vulnerable to legal challenge on that ground alone.
But it would be a mistake to focus too much on which statutory power is being used here. What matters it that Trump is federalizing the Guard for the purpose of policing Americans’ protest activity. That’s dangerous for both public safety and democracy.
The memorandum says that the Guard will be protecting ICE personnel and federal property. As a practical matter, this will almost certainly involve serving basic police functions, such as physical crowd control, that the military normally isn’t allowed to perform.
Civil unrest should be handled by civilian law enforcement except in the most extreme situations. Soldiers are trained to fight and destroy an enemy; they aren’t trained to safely handle and deescalate civil unrest situations.
Moreover, the line between military and civilian government is one of the most critical protections for democracy. An army turned inward can quickly become an instrument of tyranny. That’s why domestic deployment should be an absolute last resort.
Moreover, the line between military and civilian government is one of the most critical protections for democracy. An army turned inward can quickly become an instrument of tyranny. That’s why domestic deployment should be an absolute last resort.
In situations where law enforcement authorities are working to maintain order, they are best positioned to know whether they need reinforcements. LA police are very much on the scene. And they are not asking for help.
But there’s an even bigger problem with Trump’s order. He isn’t just authorizing deployment to Los Angeles. In fact, his memorandum doesn’t even mention LA. It authorizes deployment “at locations where protests against [ICE] functions are occurring or are likely to occur.”
ICE activity is happening across the country, and will likely draw protests in many places. Trump is authorizing military deployment nationwide, regardless of whether protests involve violence or are even happening yet.
No president has ever federalized the National Guard for purposes of responding to potential future civil unrest anywhere in the country. Preemptive deployment is literally the opposite of deployment as a last resort. It would be a shocking abuse of power and the law.
Yet another cause for concern: Trump’s memorandum purports to authorize the Secretary of Defense to deploy active-duty armed forces as well, if he deems it necessary. But it cites no law whatsoever that would expressly authorize such a deployment.
While the Insurrection Act authorizes deployment of active-duty armed forces, 10 USC 12406 only authorizes federalization of the Guard. Any use of active-duty troops to enforce the law under this memorandum would thus be a clear violation of the Posse Comitatus Act.
The administration would likely claim an inherent constitutional right to protect federal personnel and property (in keeping with the memo’s language). But the Posse Comitatus requires “express” authorization—not a claim of implied power.
In short: don’t let the absence of the words “Insurrection Act” fool you. Trump has authorized the deployment of troops anywhere in the country where protests against ICE activity might occur. That is a huge red flag for democracy in the United States.
Trump was on TV a while ago and he said this:
Next Saturday there are protests scheduled all over the country. Trump says he’s prepared to send in troops. There will also be a massive military parade happening in Washington to celebrate his birthday.
The visuals of what is happening in America are going to be something we’ve never seen before.
