National Guard in LA: What they can do after Trump called them in to quell protests

Axios

2 days ago

Amid days of fiery protests against federal immigration enforcement in Los Angeles, President Trump signed an order deploying the National Guard — despite objection from the state's Democratic leaders.
The big picture: Trump's Saturday memorandum called up 2,000 National Guard troops for 60 days, but it stopped short of a possibly more dramatic escalation: invoking the Insurrection Act.
Context: The demonstrations again have pitted Trump against Governor Gavin Newsom (D), one of the president's top foes who has called the deployment of troops in the LA area "unlawful" and "a serious breach of state sovereignty."
Newsom said that the state would sue the Trump administration over its deployment of the National Guard, calling it an "unconstitutional act" in an interview with MSNBC.
As of Sunday, dozens of people had been arrested amid the unrest that was becoming "increasingly worse and more violent," LAPD officials said.
What did Trump's National Guard memorandum do?
Trump's presidential memorandum federalizing troops cited 10 U.S.C. 12406, a provision that allows the president to call members of a state's National Guard whenever, among other situations, there a "a rebellion" or "the President is unable with the regular forces to execute the laws of the United States."
The White House's memorandum said that to the extent that protests "directly inhibit the execution of the laws," they constitute a rebellion.
It marks the first time in some six decades, dating back to the civil rights movement, that the president has activated a state's National Guard without the state's governor requesting it, the Brennan Center for Justice's Elizabeth Goitein told The New York Times.
Around 300 members of the California Army National Guard's 79th Infantry Brigade Combat Team had deployed throughout the greater LA area as of Sunday.
Zoom in: The president tasked units with temporarily protecting ICE and other personnel performing "[f[ederal functions" and to protect federal property.
He also authorized Hegseth to use regular troops "as necessary" to augment the protection of federal functions and property.
Between the lines: Steve Vladeck, a law professor at the Georgetown University Law Center, wrote in his analysis of Trump's memorandum that the National Guard will have limited enforcement capabilities and will not be able to engage in ordinary law enforcement activity.
"[T]his provision provides no additional substantive authority that the federal government did not already possess," he wrote, pointing to a law that bars federal troops from engaging in civilian law enforcement except when authorized.
What is The Posse Comitatus Act?
The Posse Comitatus Act, which is more than 140 years old, was originally passed to ensure the federal military wouldn't be used to intervene in establishing Jim Crow after Reconstruction, per the Brennan Center.
A "posse comitatus" in American law is a group of people mobilized by a sheriff to stifle lawlessness and means"the power of the county."
In practice, it means federal military personnel can't participate in civilian law enforcement — though there are statutory exceptions, according to the Brennan Center.
When Guard members are called into federal service, they become part of the federal armed forces and are thereby covered by the Act.
Will Trump invoke the Insurrection Act?
The Insurrection Act provides the primary exception to the Posse Comitatus Act, allowing the president to deploy military members for civilian law enforcement.
According to the Brennan Center, there are three sections of the Act covering different situations in which troops can be deployed — two of which do not require a request from the affected state and permit deployment even against the state's wishes.
Flashback: The Act has been invoked at several points in American history, most recently in 1992.
In that case, President George H.W. Bush responded to a request for aid from California officials amid civil unrest prompted by the acquittal of four white police officers who were filmed beating a Black motorist Rodney King.
What he's saying: Trump in his first term flirted with the idea of using the U.S. military for domestic law enforcement and to crush protests. And ahead of his second term, he seemingly continued to lean in.
Trump said he would deploy U.S. military "if a city or state refuses to take the actions necessary to defend the life and property of their residents" during nationwide protests in 2020 sparked by the murder of George Floyd.
What we're watching: U.S. Northern Command said in a Sunday statement some 500 Marines are also prepared to deploy if necessary, a move Defense Secretary Pete Hegseth previously floated.