What Authority Does Trump Have to Use National Guard in Los Angeles?

The topic of discussion for this Constitution Monday concerns the authority of the President of the United States to protect Americans. When riots broke out in Los Angles and threatened ICE officers, Mayor Karen Bass refused to order police officers in to protect ICE officers, and California Governor Gavin Newsom refused to send in the National Guard. So, President Donald Trump ordered the National Guard into Los Angeles to protect federal employees and federal property.

California Governor Gavin Newsom would not order the National Guard into action, but he would use the court system in an attempt to force Trump to surrender the control of the National Guard to him. Joseph M. Hanneman at The Blaze reported the following information. 

President Donald J. Trump has authority under the U.S. Pservice [sp.?] for defined purposes that include putting down rebellion, defending against invasion, and ensuring execution of the laws of the United States.

When rioting broke out in and around Los Angeles on June 6 and federal employees and facilities were attacked, President Trump used his constitutional and statutory powers to call 2,000 and later 4,000 members of the California National Guard into federal service.

Democrat California Gov. Gavin Newsom on June 9 asked a federal district court judge to force the commander in chief to relinquish control of the National Guard, complaining that President Trump had not adequately consulted him.

United States District Judge Charles Breyer, appointee of President Bill Clinton and brother of retired U.S. Supreme Court Justice Stephen Breyer, sided with Newsom in a ruling that was quickly stayed by the U.S. Court of Appeals for the Ninth Circuit. A hearing is set for June 17….

The fight that Newsom started in U.S. District Court for the Northern District of California is shaping up to be more about partisan politics, policy, and lawfare than presidential authority. The U.S. Court of Appeals for the Ninth Circuit quickly stayed a district judge’s ruling that President Trump exceeded his authority. The case will almost certainly end up before the U.S. Supreme Court.

Attorneys general for nineteen states and Guam -- conservative and liberal states – “petitioned to file an amici curiae brief in opposition to Newsom’s attempt to wrestle control of the Guard back from the president.”

Newsom complained bitterly in California’s application for a federal temporary restraining order that President Trump and Defense Secretary Pet Hegseth are using a “warrior culture” that targets “the streets of cities and towns where Americans work, go to school, and raise families.”

In his application seeking judicial fiat to regain control of the Guard, Newsom denied the existence of any rebellion or invasion, instead describing the fiery rioting and assaults on federal agents and buildings by supporters of illegal aliens as “civil unrest that is no different from episodes that regularly occur in communities throughout the country that is capable of being contained by state and local authorities working together.”

“Absent immediate injunctive relief, defendants’ use of the military and the federalized National Guard to patrol communities or otherwise engage in general law enforcement activities creates imminent harm to state sovereignty, deprives the state of vital resources, escalates tensions and promotes (rather than quells) civil unrest,” California Attorney General Rob Bonta wrote in the state’s motion for a restraining order….

In calling up the National Guard and ordering 700 active-duty U.S. Marines to Los Angeles, President Trump judged that Newsom and Bass were unwilling to support the rule of law and protect federal employees, vehicles, facilities, and the general public.

Attorneys for the DOJ insist that the authority to use the military to protect federal agents rests solely with the president, and it is his job alone to determine the measures needed to keep federal employees, facilities, and interests safe from mob rule….

Under Section 10 U.S. Code § 12406, the president has authority to use the National Guard to suppress rebellion, repel an invasion, or execute federal laws…. [Emphasis added.]

Judge Breyer’s issuance of a temporary restraining order, quickly stayed by the U.S. Court of Appeals, was a “dangerous” overreach of judicial authority, Edelman suggested….

The president’s authority under Section 10 was tailored in this case to protect those engaged in law enforcement functions, such as ICE agents and Department of Homeland Security officers. Neither Guard troops nor Marines were assigned law enforcement duties, so President Trump’s actions do not run afoul of the Posse Comitatus Act, which generally prohibits U.S. military personnel from performing domestic law enforcement functions.

“Plaintiffs offer no contrary evidence, only a speculative assertion that the National Guard and Marines will be used for unlawful purposes in the future,” Edelman wrote.

“Courts did not interfere when President Eisenhower deployed the military to protect school desegregation … when President Nixon deployed the military to deliver the mail in the midst of a postal strike. And courts should not interfere here either.”

Given the rioting involved, President Trump could have federalized the National Guard by enabling the Insurrection Act. But he chose to work through federal statute in Section 10.

“The statutory lineage of [sub] Section 12406 begins with the First Militia Act of 1792, which, among other things, was used by George Washington to respond to the Whiskey Rebellion,” Edelman wrote….

            The Insurrection Act has been legally invoked 30 times by 17 presidents, according to the                        Brennan Center for Justice, a New York-based law and policy center.