The decision to have the National Guard deployed into the Los Angeles region to address the ongoing riots in the city has been an added dose of controversy this weekend. Gavin Newsom has been crying over this incursion, declaring it a violation of state sanctity. The press has joined in to harmonize hysterically, declaring this an intentional move on the part of President Trump to extend his authoritarian desires and invoking police state measures.
Now I, as a rock-ribbed federalist, had a share of misgivings about the call, as it did appear to be trampling on some state protections. But at the same time, there appeared to be some justification for the move as well. In a common-sense approach, the lack of urgency from Newsom and Mayor Bass to deploy law enforcement as the rioting kicked off could be seen as due cause. But more specifically, the fact that federal buildings were being swarmed by protestors, and federal agents from ICE and other agencies were targeted with attacks, appeared to be more justifiable.
Looking into the parameters for this activity, it appears this is the case. Some of the coverage has speculated that President Trump rested on the Insurrection Act as a means to send in federal troops, but there is a more distinct legal basis in play. In Title 10 of the US Code, regarding Armed Forces deployment - and specifically that of the National Guard - we see outlined in Section 12046 where this is permissible in the language.
In one way, this can be justified in the section discussing an invasion, rebellion, or danger of rebellion. More to the point, it describes a point if the president determines that he is “unable with the regular forces to execute the laws of the United States.” This carries a bit of subjectivity, but deeper in the Code is a more succinct call for this action.
It stipulates that federal troops are permitted to protect federal agents carrying out law enforcement actions and protect federal property. Considering ICE agents have been attacked and facilities such as the federal facility with the immigration detention center were being targeted by rioters, this certainly appears to be an accurate application of the US Code.
There is even a sign of how they are following this federal statute appropriately. In one case of a skirmish seen on the streets, a siege of sorts was taking place at Los Angeles City Hall, and one person questioned why the National Guard was not on site to quell that conflict. Jurisdictionally, they were appropriately stationed at the federal buildings and not at this location to engage with the protestors.
Newsom reportedly is threatening lawsuits, of course, but this has all the appearances of a face-saving measure to curry sympathy from his party and the press. Few in the media have been curious enough to explore the legal basis of Trump sending in troops; it has mostly been characterized as an overstepping of his authority and his desire to install oppressive tactics. President Trump appears to be fully justified in his actions, and that was brought on by the inaction seen from Newsom and L.A. Mayor Karen Bass.
Even if Newsom takes his challenge to the courts, there is a question of how successful he can expect to be. Reuters even looked into this prospect and concluded that the assertion that governors need to grant permission for national troops to come in is a parameter that is flexible.
The protests in California do not rise to the level of “rebellion” and do not prevent the federal government from executing the laws of the United States, experts said. Title 10 also says "orders for these purposes shall be issued through the governors of the States," but legal experts said that language might not be an obstacle. Legislative history suggests that those words were likely meant to reflect the norms of how National Guard troops are typically deployed, rather than giving a governor the option to not comply with a president's decision to deploy troops.
The reality of this is also one of expedience, or the lack thereof. By the time this would even make its way to a courtroom on the merits, the riots will be long over, and Newsom himself may be out of office, rendering it all a moot issue. If they were wise, it would not even be pursued; given how the Democrats are driven solely by emotions and dramatics, this is more likely to play out to some degree.
Editor's Note: President Trump isn't going to allow lawlessness to reign in America. We will not have a repeat of 2020's "Summer of Love."
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