Trump sends in California National Guard

 

As President Trump invoked his Title 10 authority to federalize and deploy 2,000 National Guardsmen in California, most of the country seemed to be enjoying a normal weekend evening. But by late evening, there was increasing awareness that what was happening wasn’t normal.

I’ll hold off on what I had planned to discuss in “The Week Ahead” tonight (briefing in the tariffs case for one thing), to try and give us some baselines for understanding what is happening in Los Angeles. And in the White House. There is a lot of territory to cover here, and it’s complicated, so bear with me. I’m hitting send on this around 8:30 Central time, and it seems very likely that there will be more developments this evening.

The Trigger:

Trump issued a presidential action. It is styled as a direction to the Secretaries of Defense and Homeland Security and the Attorney General.

Trump asserts that “incidents of violence and disorder” taking place “in response to” ICE’s visible presence on American streets doing immigration enforcement work (Trump calls this “the faithful execution of Federal immigration laws”) “threaten the security of and significant damage to Federal immigration detention facilities and other Federal property.” He claims the protests “constitute a form of rebellion against the authority of the Government of the United States.”

The Law:

Trump’s move was to federalize 2000 National Guard troops under a provision of law, 10 U.S.C. § 12406, which provides 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.”

This is not a formal invocation of the Insurrection Act, which we have discussed before. But, big caution here: Don’t be any less concerned just because they’ve avoided that—for now. The action federalized National Guard troops can take is limited to protection of federal personnel and property: “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.” That’s because the Posse Comitatus Act prohibits the military (including federalized National Guard troops) from being used for domestic law enforcement.

You may remember how this works from our earlier discussion. We all understand why the military can’t do police work on American streets. And our friends and family members who serve in the military didn’t sign up to police their fellow citizens; they signed up to protect against foreign threats.

The Insurrection Act is an exception to Posse Comitatus that permits the use of the military on American streets in moments of deep unrest. It’s supposed to be a last resort. Perhaps because of the political connotations that would be involved in invoking the Insurrection Act, Trump hasn’t gone that route, instead using Title 10 authorities to nationalize the Guard. That means that their role is limited to protecting Feds (and their property) as they perform their duties.

Which is to say we are one flared temper, one foolish incident, away from a true national emergency. This is a moment where de-escalation is called for. But it doesn’t look like that’s what the Trump administration wants here.

The Analysis:

The issues here are both legally and practically complicated, and it is a very serious moment for our country. One major difference from Trump’s first administration is that cooler heads steeped in military tradition, like General Milley, are no longer present, replaced by one-time soldier and former Fox host Pete Hegseth, who threatened to send active duty Marines into action.

The Protests

Early on Sunday, protests were mostly peaceful and traffic continued to flow. But later in the day, Mayor Karen Bass tried to calm the waters with a press conference where she emphasized Angelenos’ commitment to their immigrant neighbors, regardless of where they came from or how long they had been there for. At the same time, she underscored that protests had to be nonviolent and condemned protesters who spilled out onto the 101.

But the protest grew increasingly tense. From the city’s point of view, it’s essential to show that they are in control and protests are lawful, to prevent Trump from asserting the need to use the National Guard to maintain order.

There was at least one incident which, from photos, seemed to show that two vehicles that looked like Waygo’s had been vandalized and set on fire. Although the incidents were limited, they will give the administration additional ammunition. It’s more important now than ever that protests remain peaceful. Early evening, Governor Newsom encouraged protestors to avoid falling into “the trap” that was being set for them, as the President threatened to deploy active duty Marines.

As written, Trump’s Action is not limited to California. The framework is there for this to expand to other states, for instance, if protests against ICE operations erupt. But also, this comes just a week out from Trump’s military birthday parade and the planned No Kings marches across the country. This may well explain the timing of this announcement, which is as much about the politics as anything else. Trump doesn’t want to see the country erupt in protests on his birthday. This new development is at least part intimidation tactic, looking toward next weekend.

It’s clear this administration wants the fight. They want the legal fight in court over presidential power and authority. But it also seems that they also want it in the streets. They are not taking steps to de-escalate. To the contrary, they continued to dig in on Sunday afternoon. The chaos continues to keep Americans divided and gives the administration a platform for still more repressive steps. It also serves as a distraction from Trump’s other problems, like his not-particularly-beautiful budget.

The role of California Governor Gavin Newsom isn’t entirely clear. There is an inside baseball legal dispute over whether the law requires his consent to nationalize the Guard or not. There is little legal guidance on this point, and for now, it’s sufficient to say we can expect this to be one of the issues included when California goes to court. The Trump administration is acting under Title 10 USC 12406, which provides that “orders for these purposes shall be issued through the governors of the States.” That language is as clear as mud. Newsome tweeted last night.

If Trump goes further and invokes the Insurrection Act, an unprecedented step that would provoke a major response, military authorities would be able to engage in law enforcement, participating in immigration actions and making arrests, among other duties. However, it would not be martial law in the sense that our laws, with the Fourth Amendment and other protections still in place, would remain intact. The military can’t go any further than their civilian counterparts could in enforcing the law. They can arrest people, if the law authorizes it, or disperse them. However, our constitutional rights would still remain in effect. That constitutional context is not an environment in which members of the military are accustomed to operating, which could present its own complications.

This administration has been spoiling for a fight. Secretary of Defense Pete Hegseth’s language of “violent mob assaults” and a “dangerous invasion” is aggressive. In a moment where we need calmer heads, we are getting hot ones. This is a powder keg and it only takes one encounter that goes bad to light the fuse.

Trump is not serious about keeping the peace. It’s a political provocation, with a 2:41 a.m. tweet this morning designed to fan the flames. If he’s given any excuse for invoking the Insurrection Act, it’s hard to imagine him backing down. Concerns about the Insurrection Act don’t mean that Americans should obey in advance, giving up their right to assemble and protest peacefully. But it does mean we need to understand the way the Trump administration could respond and why peaceful protest is essential.

Sunday afternoon, Governor Newsom sent Trump a letter that read, "I have formally requested the Trump Administration rescind their unlawful deployment of troops...and return them to my command…This is a serious breach of state sovereignty — inflaming tensions while pulling resources from where they’re actually needed." It won’t be long before California sues at this rate.

The best response is calm and deliberation, exactly what the administration doesn’t want to see from the people protesting against it. Trump doesn’t want to see protests marking his birthday parade next weekend; that may well be the reason for the timing of his action. There is nothing more important than peaceful, lawful protests where Americans publicly exercise their First Amendment rights and say no to kings this coming week.

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We’re in this together,

Joyce Vance