President Donald Trump sidestepped state power over the weekend by activating a rarely used federal authority to deploy 2,000 National Guard troops to Los Angeles to quell protests over his immigration policies.
Trump cited Title 10, a federal law that outlines the role of the U.S. Armed Forces, to bypass Gov. Gavin Newsom’s (D-CA) handling of the situation. Title 10 allows the president to put National Guard troops under federal command under three conditions: If the United States is invaded or faces a threat of invasion, if there’s a rebellion against federal authority, or if the president is unable to enforce federal laws using regular forces.
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It was last used without a governor’s permission in 1965, when President Lyndon B. Johnson sent troops to Alabama to protect civil rights demonstrators.
The Posse Comitatus Act, an 1878 law, generally forbids the U.S. military, including the National Guard, from taking part in civilian law enforcement. Section 12406 of Title 10 does not override that prohibition, but it allows the troops to protect federal agents who are carrying out law enforcement activity and to protect federal property.
The National Guard is a state-based military force that serves as a state and federal reserve branch of the U.S. Army and Air Force. It typically operates under state command and is funded by the state. In some extreme cases, troops can be given federal missions.
Trump has often discussed using military force on domestic soil to stop violent demonstrations, fight crime, and track down illegal immigrants. He has said he would use the power of the federal government, without the consent of state governors, if he returned to the White House.
Newsom, a Democrat, called Trump’s use of Title 10 unnecessary, “purposefully inflammatory,” and something that would “only escalate tensions” and “erode public trust.”
Trump said in a memo to the departments of Defense and Homeland Security that he was calling the National Guard into federal service to “temporarily protect ICE and other United States Government personnel who are performing Federal functions.”
Erwin Chemerinsky, a constitutional law scholar, called Trump’s move “truly chilling.”
“It is using the military domestically to stop dissent,” said Chemerinsky, dean of the University of California, Berkeley School of Law. “It certainly sends a message as to how this administration is going to respond to protests. It is very frightening to see this done.”
Jeff Le, former deputy Cabinet secretary to former California Gov. Jerry Brown, called the president’s actions “historic.”
“The California National Guard play a vital role for the state’s disaster response and bolstering homeland security and public safety,” Le told the Washington Examiner. “The president’s use of Title 10 authorities over the objections of the governor are historic and well outside the norms. The mobilization and its rationale for concern over a rebellion or danger of rebellion against the authority of the U.S. government likely has fomented hostilities on the ground when local police and public safety leaders had circumstances under control.”
Trump stood by his decision on Monday, saying on social media that Los Angeles would have been “completely obliterated” had he not invoked Title 10.
Trump wrote that Newsom and Los Angeles Mayor Karen Bass should thank him and accused the California leaders of misleading the public by saying National Guard troops weren’t necessary.
“Trump thinks he’s right because he views the incidents playing out in Los Angeles as acts of violence that directly inhibit the execution of federal laws and constitute a form of rebellion against the United States,” Gerard Filitti, senior counsel at the Lawfare Project, told the Washington Examiner. “Newsom views the incident as mere protest that doesn’t come close to constituting a form of rebellion. In Trump’s view, the National Guard is needed because local and state law enforcement (in accordance with sanctuary policies) is not acting to keep the peace.”
On Monday, Newsom said his state would file a lawsuit against the Trump administration over its use of Title 10.
“This is exactly what Donald Trump wanted,” Newsom posted on X. “He flamed the fires and illegally acted to federalize the National Guard. The order he signed doesn’t just apply to CA. It will allow him to go into ANY STATE and do the same thing. We’re suing him.”
California Attorney General Rob Bonta, who announced the lawsuit Monday afternoon, accused the Trump administration of violating the 10th Amendment and federal law for deploying the National Guard without Newsom’s consent.
Bonta described Trump’s decision to deploy the National Guard as “unnecessary” and “counterproductive.”
“Let me be clear: There is no invasion,” Bonta said in a statement. “There is no rebellion. The President is trying to manufacture chaos and crisis on the ground for his own political ends. Federalizing the California National Guard is an abuse of the President’s authority under the law, and not one we take lightly. We’re asking a court to put a stop to the unlawful, unprecedented order.”
Filitti told the Washington Examiner that he expects to see the fight play out in court but warned that the worse the “incidents” become, the more likely it will be that the courts, at least the Supreme Court, will ultimately find in favor of Trump.”
Former federal prosecutor Gene Rossi told Newsweek that a lawsuit would be an uphill battle for Newsom since the president has “broad discretion” to invoke the National Guard.
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He added that it was “ironic” because Trump did not call in the National Guard during the Jan. 6 riot at the U.S. Capitol, when the demonstrators were his supporters.
In all, about 150 people have been arrested in Los Angeles since Friday. Protests broke out after an immigration enforcement raid. There were dozens of other arrests in San Francisco, where a solidarity protest also turned violent.