Trump's deployment of the California National Guard in Los Angeles stands on shaky legal ground

Yahoo

2 days ago

President Donald Trump has unilaterally summoned thousands of members of the California National Guard into federal service in response to the protests and riots that have broken out in Los Angeles over his immigration crackdowns. But the federal law that Trump has cited in support of that National Guard deployment would seem to forbid the very thing that Trump is now doing.
According to Title 10, Section 12406 of the U.S. Code, the president may call the National Guard into federal service under certain limited circumstances, such as when the United States "is invaded" or when "there is a rebellion or danger of a rebellion against the authority of the Government." The law further states that the president may federalize National Guard members "of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute" the laws of the United States. However, the law adds: "Orders for these purposes shall be issued through the governors of the States."
Notice the unambiguous statutory command: "shall be issued through the governors of the States." If a governor has not issued the order—perhaps because the governor disagreed with the president's position and declined to support it—then the terms of the law have not been met.
Which brings us to the case of Newsom v. Trump.
California Gov. Gavin Newsom (D) has not only refused to issue such an order, but Newsom, acting in his official capacity as governor, has also now filed suit against Trump, charging that the president's unilateral actions are illegal under federal law.
Newsom's statutory argument seems correct to me. As the complaint in Newsom v. Trump notes, "President Trump's Memo purporting to call into federal service members of the California National Guard under 10 U.S.C. § 12406 without issuing this order through Governor Newsom is contrary to law and outside of the authority granted to the President under that statute."
To my surprise, however, Newsom's complaint failed to cite Printz v. United States (1997), the Supreme Court precedent which says that the federal government may not commandeer state officials into enforcing federal law.
Printz centered on the Brady Handgun Violence Prevention Act of 1993, which required state and local police to help enforce federal gun control laws. The Supreme Court ruled that requirement unconstitutional. "The Federal Government may neither issue directives requiring the States to address particular problems," the late Justice Antonin Scalia wrote for the majority, "nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."
So, not only does 10 U.S.C. § 12406 say that the California National Guard cannot be federalized unless the order "shall be issued" by California's governor, but Printz further says that California's governor cannot be directed "to administer or enforce a federal regulatory program." Under Printz, in other words, Newsom cannot be compelled to issue the order that Trump needs Newsom to issue in order for the California National Guard to be lawfully federalized. Printz seems like the sort of precedent that Newsom ought to be citing.
To be sure, there are other potential scenarios under which Trump may lawfully deploy National Guard forces to L.A. without first obtaining Newsom's support. For example, if Trump asked the governor of a "red" state to issue such an order, and if that Republican governor complied, then Trump could conceivably deploy the National Guard forces from that red state to Los Angeles. (Note: This scenario does not address the separate legal question about whether an "invasion" or "rebellion" is actually occurring in L.A.)
There is also the specter of the Insurrection Act lurking in the background. If properly invoked by the president, that sweeping law would permit Trump to federalize National Guard forces without the consent of any governor. There are reports that Trump may be contemplating this drastic step.
The case of Newsom v. Trump has landed on the docket of a federal district court judge named Charles Breyer. If that name sounds familiar, it might be because you've heard of his brother, retired Supreme Court Justice Stephen Breyer.
Breyer has scheduled the first hearing in Newsom v. Trump for later today. We'll see what happens next.
If you watched the first season of the brilliant Star Wars spinoff show Andor, you no doubt remember the three-episode arc set on the planet Aldhani, in which a small band of scruffy-looking rebels pulled off a daring robbery at an imperial military base. According to Andor creator Tony Gilroy, that fictional heist was partially inspired by historian Simon Sebag Montefiore's tremendous book Young Stalin, which detailed how the future tyrant got his revolutionary start by carrying out "bank robberies, protection-rackets, extortion, arson, piracy, murder." It was this "political gangsterism," Montefiore explained, "that impressed [Vladimir] Lenin and trained [Joseph] Stalin in the very skills that would prove invaluable in the political jungle of the Soviet Union."
Partially inspired by Andor, I recently started rereading Young Stalin for the first time in over a decade, and the book is even better than I remembered. If you're in the market for a gripping and illuminating work of history, I highly recommend it.
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