Trump’s L.A. National Guard Deployment Stands on Shaky Legal Ground
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
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