The legal issues surrounding Trump's use of troops to suppress protests

Boston Globe

a day ago

Here is a closer look.
Advertisement
What did Trump's order do?
Trump called up National Guard troops to be put under federal control, issuing an order late Saturday that authorized Defense Secretary Pete Hegseth to use them to protect immigration enforcement agents, buildings and functions from interference by protesters. As justification, the White House cited recent protests against Immigration and Customs Enforcement raids in Los Angeles.
Get Starting Point
A guide through the most important stories of the morning, delivered Monday through Friday.
Enter Email
Sign Up
The order called for at least 2,000 National Guard troops to be deployed for at least 60 days. Trump also authorized Hegseth to use regular federal troops 'as necessary' to augment the work of the federalized National Guard units.
The National Guard consists of military forces in the state, largely part-time troops who have separate, full-time civilian jobs. Normally, each state's governor controls its National Guard, directing it to deal with a disaster or civil disorder. But under certain circumstances, federal law allows the president to take control.
Advertisement
On its face, deploying active-duty troops into an American city is an escalation because they fight war full time and, unlike a National Guard, may come from anywhere around the country. Legally, both federalized National Guard forces and active-duty troops are federal troops, under the control of the defense secretary and the president.
What are the rules of engagement?
This is unclear.
For now, the federalized troops appear to have limited authority, Stephen I. Vladeck, a Georgetown University law professor, wrote in analyzing the order over the weekend. It says the troops can protect ICE agents and federal buildings against attacks by protesters, but it does not authorize them to carry out immigration raids or police the city's streets in general.
But Trump's order did not specify any standards for when troops would be able to use force -- such as arresting people or shooting them -- if his administration deemed a protest to threaten federal personnel, property or functions.
Notably, Hegseth has railed against military lawyers who promoted what he saw as unduly restrictive rules of engagement aimed at protecting civilians in war zones. He has fired the top judge advocate general lawyers who give advice on legal constraints. And his remarks since Saturday have not signaled restraint.
On social media, Hegseth called protests against ICE in Los Angeles 'violent mob assaults' intended to prevent the removal of migrants living in the country illegally who he said were engaged in an 'invasion.'
Hina Shamsi, director of the American Civil Liberties Union National Security Project, said Sunday that 'no matter who carries the gun or what uniform they wear, it's important to remember that the Constitution -- and in particular the First Amendment -- applies and troops' conduct is governed by strict constitutional limits.'
Advertisement
Is it legal to use federal troops on U.S. soil?
Usually it is not, but sometimes it can be.
Under an 1878 law called the Posse Comitatus Act, it is normally illegal to use federal troops on domestic soil for policing purposes. But an 1807 law, the Insurrection Act, creates an exception to that ban for situations in which the president decides that 'unlawful obstructions, combinations or assemblages, or rebellion against the authority of the United States' make it 'impracticable' to enforce federal law.
Trump's order criticized the protests as violent and said they threatened to damage federal immigration detention facilities. 'To the extent that protests or acts of violence directly inhibit the execution of the laws,' it added, 'they constitute a form of rebellion against the authority of the government of the United States.'
But he did not invoke the Insurrection Act.
What legal authority did Trump cite?
Trump invoked a statute, Section 12406 of Title 10 of the U.S. Code, that allows him to call National Guard members and units into federal service under certain circumstances, including during a rebellion against the authority of the federal government.
The call-up statute does not, on its face, appear to confer any authority to use any kind of federal troops -- whether they be federalized National Guard members or active-duty Marines -- in the ways Trump has authorized.
But Trump also referred to 'the authority vested in me as president by the Constitution,' which may suggest his administration believes he can claim inherent constitutional power as the commander in chief to use troops on U.S. soil in those ways.
During the Vietnam War, William Rehnquist, then a lawyer for the Justice Department before being confirmed to the Supreme Court, wrote memos for its Office of Legal Counsel saying that presidents had inherent power to use troops to prevent anti-war protesters from obstructing federal functions or damaging federal property in the District of Columbia and at the Pentagon.
Advertisement
Using troops in such a protective capacity would not violate the Posse Comitatus Act, Rehnquist argued at the time. But there was no definitive court test of that idea. Moreover, the nation's capital and the campus of the Pentagon are both federal enclaves, unlike the businesses in Los Angeles where ICE agents are carrying out raids.
Must a state's governor consent to federal troops?
Not always.
But Section 12406 says that orders for National Guard call-ups 'shall be issued through the governors of the states.' One of the state's complaints is that Hegseth ignored that provision, notifying the general in charge of California's National Guard without going through Newsom.
The Insurrection Act would provide a separate basis for federalizing California's National Guard or for using active-duty troops without going through a governor. California Attorney General Rob Bonta said Monday that his office had been studying that law should Trump try to invoke it, but he insisted that local authorities were 'completely prepared' to address any developments.
Using federal troops on domestic soil outside military bases for policing purposes has happened only in rare and extraordinary circumstances, and doing so over the objection of a state's governor is even more unusual.
The last time a president used federal troops for domestic policing purposes was in 1992, when President George H.W. Bush invoked the Insurrection Act to suppress widespread riots in Los Angeles after a jury acquitted police officers who had been videotaped beating a Black motorist, Rodney King. But in that instance, California's governor, Pete Wilson, and Los Angeles' mayor, Tom Bradley, asked for federal assistance.
Advertisement
Presidents have not used federal troops without the permission of state governors since the Civil Rights Movement, when Southern governors defied court orders to desegregate public schools.
Which troops is Trump using?
For now, the National Guard troops have come from the California National Guard, while about 700 Marines joining them are normally based at Twentynine Palms in California, according to U.S. Northern Command.
But Trump directed Hegseth to 'coordinate with the governors of the states' -- plural -- in identifying which units to call into federal service. That raises the possibility that Hegseth could send troops from a Republican-controlled state, further heightening the political tensions.
Another possibility is that the administration envisions expanding the use of troops to other parts of the country. Trump's order is not limited to Los Angeles, stating instead that troops must protect immigration enforcement operations at any 'locations where protests against these functions are occurring or are likely to occur.'
What is the status of the court challenge?
The state filed a lawsuit Monday evening. It argued that the Trump administration had violated the procedure required by the National Guard call-up statute in bypassing Newsom.
It also argued that local law enforcement could handle policing the protests, and by sending federal troops into the fray, Trump was trammeling states' rights protected by the 10th Amendment. It reserves to the states those governing powers that the Constitution does not bestow on the federal government.
The Justice Department has not yet responded to the lawsuit and declined to comment.
As events unfold, there could also be lawsuits on behalf of protesters, invoking individual rights such as First Amendment protections for freedom of speech and assembly.
Advertisement
This article originally appeared in