Federalizing the National Guard in California Over the Governor’s Objection

On June 9, California Governor Gavin Newsom sued President Trump over the President’s directive to federalize units of the California National Guard and deploy units of the Marine Corps to Los Angeles to protect immigration officers and facilities and enable them to enforce federal immigration law. The suit claims that these actions are not authorized by the federal statute cited for them and that they violate the post-Reconstruction Posse Comitatus Act.

On its face, the complaint does seem to have some merit under the statute cited in President Trump’s memorandum, but there are other statutes that he could have invoked that are not subject to the same objection. On consideration of those other statutes, this appears to be the kind of issue that calls for maximum deference to presidential authority.

The Posse Comitatus Act was enacted after Reconstruction and generally bars use of the military for domestic law enforcement. It is presently codified at 18 U.S.C. § 1385:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Coast Guard is noticeably absent, as that branch does have a law enforcement mission.

The prohibition is not as broad as is commonly believed, though, because the authorized exceptions are substantial. The President cited 10 U.S.C. § 12406. That statute provides:

Whenever—

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

We can put to one side whether the meaning of “invasion” or “rebellion” can be stretched far enough to cover the current situation. Preventing execution of the immigration laws is the core purpose of the mass demonstrations and their accompanying car burning, rock throwing, and Molotov cocktail tossing. The statute is phrased in terms of what the President “considers necessary,” indicating this matter lies in the President’s discretion.

Where Gov. Newsom has a valid point, though, is that this particular statute expressly requires that the order be issued through the state governor. On the face of the statute, that is not discretionary, and the federal government has not complied. It is curious that the administration chose this statute when there are better ones available.

The Calling Forth Act was enacted during George Washington’s administration, and he invoked it to put down the Whiskey Rebellion. The present version of the pertinent provision of that act can be found in 10 U.S.C. § 252:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Are there presently “unlawful obstructions, combinations, or assemblages” preventing “enforce[ment] of the laws of the United States”? The administration could certainly make a good case that this condition exists in Los Angeles, and the statute requires only that the President consider this condition to exist. It does not authorize a court to substitute its own judgment on the matter. Unlike section 12406, this statute has no requirement that the President go through the state government. It refers to the militia rather than the National Guard by name, but another statute fills that gap. Under 10 U.S.C. § 246(b), the “organized militia . . . consists of the National Guard and the Naval Militia.” So section 252 is express authority to “call into Federal service” the National Guard of the State when the usual forces are insufficient to enforce federal law.

The next section, 10 U.S.C. § 253, provides the President with even more clear authority to act without the cooperation of the state or even over its objection:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

The section is a remnant of the Ku Klux Klan Act of 1871, enacted with the possibility in mind that a state government might be uncooperative or even actively hostile to enforcing laws and protecting citizens’ rights. President Eisenhower invoked the authority of the predecessors of sections 252 and 253 during the Little Rock High School integration crisis in 1957. Attorney General Brownell wrote an opinion (41 Op. Atty. Gen. 313) recording his earlier advice to the President on that occasion:

I thereupon advised you that you then had the undoubted power, under the Constitution and laws of the United States, to call the National Guard into service and to use those forces, together with such of the Armed Forces as you considered necessary, to suppress the domestic violence, obstruction and resistance of law then and there existing.

I further advised you, and do again advise you, that your power so to act rested upon both your powers as President under the Constitution and the powers vested in you by the Congress under Federal law, particularly as reflected by sections 332 and 333 of title 10 of the United States Code.

President Kennedy also invoked these statutes as the “massive resistance” campaign continued into the early 1960’s. The Supreme Court upheld his stationing of military personnel in Birmingham on a preparatory basis in a brief per curiam decision in Alabama v. United States.

The government of California today is actively hostile to the enforcement of federal immigration law. President Trump has solid legal grounds for his action, but he should consider relying on more appropriate statutes.