The LA military deployments and the law: Some observations
Domestic deployments of military personnel can be contentious, and the recent events in Los Angeles certainly have demonstrated that. On June 9th, the Governor and the State of California filed a lawsuit against the President and the Department of Defense (DoD) because of the federalization of thousands of California National Guard troops and their deployment to Los Angeles as a result of disorders related to immigration enforcement actions.
Also, U.S. Northern Command (NORTHCOM) announced on Monday:
“U.S. Northern Command has activated the Marine infantry battalion that was placed in an alert status over the weekend. Approximately 700 Marines with 2nd Battalion, 7th Marines, 1st Marine Division will seamlessly integrate with the Title 10 forces under Task Force 51 who are protecting federal personnel and federal property in the greater Los Angeles area”.
Significantly, NORTHCOM added:
“Task Force 51 is comprised of approximately 2,100 National Guard soldiers in a Title 10 status and 700 active-duty Marines. Task Force 51 forces have been trained in de-escalation, crowd control, and standing rules for the use of force.” (Emphasis added)
This post aims to help you understand the legal issues involved so you can draw your own conclusions about this controversial situation.
Context
CBS News reported on Monday that in deploying the troops, the President acted “in response to a weekend of violent clashes between law enforcement officers and protesters triggered by immigration enforcement operations in the area on Friday.”
What was law enforcement facing? NPR said “police wrote on X that they were conducting arrests and people were throwing ‘concrete, bottles and other objects.'”
The Boston Globe found:
“Tensions in Los Angeles escalated Sunday as thousands of protesters took to the streets in response to President Trump’s extraordinary deployment of the national guard, blocking off a major freeway and setting self-driving cars on fire as law enforcement used tear gas, rubber bullets, and flash bangs to control the crowd.”
The New York Times reported on local police efforts:
“[Los Angeles County] Sheriff Luna said Sunday that his deputies had “tried everything to de-escalate the situation” and at one point declared an unlawful assembly. But after some in the crowd attacked deputies with broken cinder blocks, rocks, bottles and pepper spray, “we unfortunately had to respond,” he said, adding that several people were arrested in connection with the attacks….And as the weekend has worn on, Sheriff Luna said, “the level of violence from some protesters is becoming more extreme.”
CNN showed a video where “two police officers were injured when two motorcyclists drove through a skirmish line.” ABC News says the U.S. Attorney charged two men with “trying to throw Molotov cocktails at police.” NBC News reported that the LA County District Attorney charged a man for allegedly bringing “commercial-grade fireworks to a protest site, passing them out to other protesters and throwing them at LAPD officers.”
Yahoo News quoted LA police chief Jim McDonnell as saying “during the clashes over the weekend some protestors had thrown fireworks and pieces of cinderblock at officers.” McDonnell noted that those actions “can kill you.”
CBS News said a “federal law enforcement official told [them] that multiple federal law enforcement officers were injured during confrontations with protesters on Friday and Saturday.“
According to the Los Angeles Times, Chief McDonnell, while not yet endorsing the deployment of troops, did observe on Monday that “Well, looking at tonight, this thing has gotten out of control.”
The President’s rationale
The President explained the rationale for his action in a 7 June memorandum, “Department of Defense Security for the Protection of Department of Homeland Security Functions.” Here are some key extracts from that document:
“Numerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law by U.S. Immigration and Customs Enforcement (ICE) and other United States Government personnel who are performing Federal functions and supporting the faithful execution of Federal immigration laws. In addition, violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property. To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”
“In light of these incidents and credible threats of continued violence, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”
10 U.S.C. § 12406
Both the President (in his memorandum) and Governor Newsom (in his lawsuit) cite 10 USC §12406. Here’s what it says:
The role of the troops
What is the role of the troops in the LA deployment? Many commentators insist that their function is limited by the Posse Comitatus Act, a Federal law that restricts the ability of Federal military forces (including federalized National Guard) to enforce the law. As I’ve explained elsewhere, the Act (which does not, incidentally, have a sainted origin) says:
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.
One of those Congressionally authorized exceptions mentioned by many commentators is the Insurrection Act (which the President has not invoked). It is, however, hardly the only legal authority to use the military in a law enforcement capacity.
In reality, there are numerous other statutory exceptions to the Posse Comitatus Act. Several of these exceptions do not, as some seem to believe, necessarily require an in extremis situation. For example, Federal law permits the use of the military, believe it or not, to enforce the rights of owners in guano islands.
What about 10 USC § 12406? Some commentators insist that it is not an exception to the Act. However, a 2018 Congressional Research Service (CRS) report concludes:
Moreover, the text of § 12406 speaks to using the military “to execute the laws,” and that language can further support the CRS’s interpretation.
Other analysts, however, maintain that “Section 12406 does not override that prohibition, but it allows troops to protect federal agents who are carrying out law enforcement activity and to protect federal property.”
Protective function
The President’s memorandum itself limits the scope of the troops’ mission to performing a protective function. Specifically, the troops are to “protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”
An argument can be made that merely protecting federal agents who are enforcing the law and protecting federal property (as opposed to immigration enforcement activities such as arresting people) are not actions requiring a Posse Comitatus exception.
In addition, as I’ve discussed here, there is a rarely mentioned statute, 6 U.S.C. § 465. that may have relevance. It stresses the “continued importance and applicability of the Posse Comitatus Act” but in this 2002 enactment, Congress also recognized inherent Presidential authority under Article II of the Constitution:
“[B]y its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.” (Emphasis added.)
The Supreme Court, in the 1890 case of In re: Neagle (involving using a Federal Marshal to protect a Federal judge), concluded that even in the absence of an explicit authorizing statute:
“[T]he general obligation imposed upon the President of the United States by the Constitution to see that the laws be faithfully executed, and the means placed in his hands, both by the Constitution and the laws of the United States, to enable him to do this, impose upon the Executive department the duty of protecting a justice or judge of any of the courts of the United States, when there is just reason to believe that he will be in personal danger while executing the duties of his office.”
There is no reason to think that the Constitution (as opposed to any specific statute) does not impose upon the President a similar “duty of protecting” Federal immigration enforcement officials, where, as has here its been reported that “multiple federal law enforcement officers were injured during confrontations with protesters.” (Assaults against Immigration and Customs Enforcement (ICE) officers are up 400% this year).
The lawsuit
Local authorities have vehemently objected to the President’s action. On Monday, California Governor Newsom’s website stated:
“Governor Gavin Newsom, the Governor and Attorney General Rob Bonta today are filing a lawsuit against the Trump administration to end the illegal and unnecessary takeover of a CalGuard unit, which has needlessly escalated chaos and violence in the Los Angeles region. The lawsuit, which names President Trump, Defense Secretary Pete Hegseth, and the Department of Defense, outlines why the takeover violates the U.S. Constitution and exceeds the President’s Title 10 authority, not only because the takeover occurred without the consent or input of the Governor, as federal law requires, but also because it was unwarranted.”
The threatened lawsuit was, in fact, filed on June 9th. Here’s how California summarizes its lawsuit’s contentions (in red, followed by some very brief commentary).
California contends:
“The federalization of the California National Guard deprives California of resources to protect itself and its citizens, including those working on drug interdiction at the border, and of critical responders in the event of a state of emergency — such as the January 2025 firestorm in Los Angeles, which CalGuard responded to.”
Although CalGuard has a reported strength of 24,000 troops (making it the nation’s largest), the CalGuard’s federalization (now about 4.000 troops) does leave fewer personnel available for state-unique missions.
However, the temporary diminution of National Guard resources available for state-unique missions because of Federal missions should not be unexpected. The National Guard – including California’s units – is, by design, a dual-status organization with both Federal and State responsibilities. In California’s case, its members have performed many Federal missions, including overseas duty in Iraq and Afghanistan.
Indeed, the use of the National Guard for Federal missions is organic to its legal structure. As the Supreme Court explained in the 1980 case of Perpich v. Department of Defense, a case where (based on a different statute than in the CalGuard case) the governor of Michigan opposed the federalization and overseas deployment of a unit of his state’s National Guard:
Since 1933, federal law has provided that persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as state Guard members unless and until ordered to active federal duty, and revert to state status upon being relieved from federal service.
There does not seem to be any authority for the proposition that the diminution of resources available for possible state-specific missions because of state guard units being called for Federal duty would, at least in this instance, amount to a sufficient reason to negate the authority to order CalGuard members to perform this particular Federal mission.
Interestingly, there is another military entity available to governors, one separate from the National Guard, and it is a state defense force. These units are organized and funded by the state, are commanded by the governor, and are not subject to federalization. California has such a force, the California State Guard.
If the governor believes that, given the ever present specter of federalization of the National Guard, the state needs a larger number of people reserved for state-only missions, the California State Guard (as opposed to the California National Guard) is an available option for that purpose.
California further opines:
“10 U.S.C. § 12406 requires that the Governor consent to federalization of the National Guard, which Governor Newsom was not given the opportunity to do prior to their deployment.”
Nothing in the law indicates any requirement for the Governor to consent to federalization, or that he be consulted beforehand. The statute does say that the orders “shall be issued through the governors of the States,” but that is not sufficient to find the governors have a veto power over the deployment. In my view, it is a ministerial act that does not create rights for the governor.
Additionally, according to California’s pleadings, the Secretary of Defense communicated the President’s directive to the California Adjutant General who shared it with the Governor’s office. Nevertheless, California characterizes this in its pleadings as the Secretary having “unlawfully bypassed the Governor of California.”
However, Professor Chris Mirasola points out:
While California is entirely correct that the governor is the commander in chief of the state’s militia, it’s not at all clear that any orders, in the usual course, must pass over the governor’s desk as a matter of law. Article 3.163 of the California State Code, for example, provides that the adjutant general (the commanding general of the California National Guard) “shall issue all orders in the name of the Governor.”
In other words, it appears that working through the Adjutant General is consistent with California law.
California also asserts:
“The President’s unlawful order infringes on Governor Newsom’s role as Commander-in-Chief of the California National Guard and violates the state’s sovereign right to control and have available its National Guard in the absence of a lawful invocation of federal power.”
As made clear in the structure of the National Guard when federalized, the president supplants the governor as commander of the activated National Guard units. The Court in Perpich observed:
The unchallenged validity of the dual enlistment system means that the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the State militia during their period of active duty.
The Court in Perpich found that dual enlistment system “establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty…without either the consent of a state governor or the declaration of a national emergency.”
Though, as I said above, Perpich involved a different statute, its logic is persuasive here. Specifically, Congress, exercising its Article I, § 8 enacted 10 U.S.C. § 12406 and in doing so elected not to require the consent of the governor. If the governor wants exclusive control of a military organization, then the California State Guard is the option.
California further maintains:
“The situation in Los Angeles didn’t meet the criteria for federalization, which includes invasion by a foreign country, rebellion against the authority of the Government of the United States, and being unable to execute federal laws. At no point was this the case in the Los Angeles area, where local and state law enforcement remained in control.”
The President determined that the “protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.” There does not appear to be any statute or case law that elucidates the meaning of “rebellion against the authority” of the government. While the President’s interpretation is a novel one, the courts traditionally have been deferential to the elected branches of government with respect to military matters.
Though that deference has arguably waned, my view is that it is unlikely to substitute its judgment for that of the President as to what facts are sufficient to constitute “rebellion against the authority of the Government.”
Moreover, while opinions can legitimately differ as to the need for federalization, the governor’s perspective is simply not controlling. As the Supreme Court said in the 1827 case of Martin v Mott, (which involved the federalization of militia):
In short, I am skeptical that California’s lawsuit will succeed.
Late yesterday, Senior U.S. District Judge Charles Breyer (brother of former Supreme Court Justice Stephen Breyer) issued an order denying California’s request for an injunction against the federalization of its National Guard units. A hearing is set for Thursday, June 12.
Concluding thoughts: protecting law enforcement personnel, peaceful protesters, and migrants
I have never been enthusiastic about the domestic use of the armed forces in situations involving public disorders (see e.g., here and here). Moreover, as I told the Wall Street Journal, about the situation in Los Angeles, “The military will follow lawful orders. But domestic activities, like this one, is not something they ordinarily seek, especially at a time when there are multiple demands on the armed forces because of external threats.”
However, I do accept, sadly, that there are times when the military is – temporarily – needed for domestic use to counter disorders.
The Army’s three-volume Role of Federal Military Forces in Domestic Disorders Collection recounts numerous instances where National Guard and active-duty troops were used not just in civil disturbances related to antiwar protests and civil rights demonstrations, but also during industrial disputes, prison riots, and even “a nationalist uprising in Puerto Rico.”
Though I often disagree with the Secretary of Defense, he did make a point in his testimony yesterday about the importance of “maintaining law and order on behalf of law enforcement agents who deserve to do their job without being attacked by mobs of people.”
Of course, we must also be diligent in protecting the civil liberties and physical safety of peaceful protesters. As is too often the case, a situation like this can become infected by opportunists with nefarious aims.
As the LA police chief put it, “When I look at the people who are out there doing the violence, that’s not the people that we see here in the day who are out there legitimately exercising their First Amendment rights.” Instead he saw “‘hooded’ ‘anarchists’ who, he said, intend to cause mayhem and try to ‘get away with whatever they can’.”
The “mayhem” such people can generate endangers law enforcement personnel and peaceful protesters alike — not to mention migrants and the general public.
Part of the problem is that while California law enforcement authorities have acted to counter rioters, the California Values Act, according to Cal Matters, “bars state and local police from investigating, interrogating, or arresting people for immigration enforcement purposes, and limits — but does not entirely prohibit — police cooperation with federal immigration officials.” (See also here for the key part of the statute.)
Not all activities are prohibited. For example, Cal Matters says:
“The law says police can tell immigration authorities about an inmate’s upcoming release if that person has been convicted of a serious crime or felony, such as: murder, rape, kidnapping, robbery and arson, among many others. And as some sheriffs have noted, there is nothing that stops immigration officials from using jail websites and fingerprints databases to identify people of interest.”
What isn’t clear, however, is to what extent local authorities will help protect immigration enforcement agents as they go about their duties. Will they accompany them as they conduct apprehensions? It doesn’t seem so.
At the same time, the Federal government is intent on strictly enforcing immigration law, and that seems unlikely to change. (A CBS poll taken shortly before the LA disorders shows 54% of Americans support the President’s deportation policies).
Consequently, what concerns me right now is that the use of the military in this way will not be a “temporary” fix, but perceived as a long-term “solution” which it certainly should not be. America needs its armed forces, and especially its active duty troops, to focus their energies on countering the dangerous external threats we find around the globe.
The answer is obvious: Federal and state civilian authorities need to work together to allow peaceful protests while at the same time permitting immigration authorities to safely carry out their duties, all in the context of protecting the civil liberties of everyone concerned – including the migrants. It can and must be done.
More info
Here are some Lawfire® posts that might be helpful:
Yes, the law of military orders matters, and here’s how, 2 November 2024
Mobilizing the military for domestic operations: some legal considerations, 2 June 2020
No, it isn’t illegal for troops to intervene if Customs and Border Protection personnel are being assaulted, 5 December 2018
Update (Jun 13):
At the hearing yesterday (June 12), Judge Breyer sided with California (but did not address the deployment of active duty Marines). However, the Department of Justice (DoJ) immediately appealed, and the 9th Circuit stayed Breyer’s order. A hearing is set for Tuesday, the 17th. For now, the deployment proceeds. By the way, Jack Goldsmith and BoB Bauer have had excellent discussions on their Substack podcast, Executive Functions.
Update (Jun 21)
In a 38-page opinion the 9th Circuit granted DoJ’s request for a stay pending appeal. The deployment continues. Judge Breyer is now asking for briefings from both sides on whether the Posse Concomitants Act” is being violated.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
