Federal Court Rightly Invalidates Trump’s Illegal Federalization of California National Guard Troops
Earlier tonight, Federal District Court Judge Charles Breyer issued a ruling against President Donald Trump’s federalization of some 4000 California National Guard troops, for the ostensible purpose of quelling violent protests against ICE deportations in Los Angeles. Judge Breyer’s opinion strikes me as impressive and compelling, especially considering how quickly it was produced. The issue raised here is an important one, and part of a broader pattern of abuse of emergency powers by the Trump Administration.
As Judge Breyer explains, National Guard troops are normally under the control of their state governments, and can only be federalized in narrowly specified emergency circumstances. The statute Trump relied on to federalize California National Guard troops, 10 U.S.C. Section 12406, can only be used in one of the following situations:
1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States
There is obviously no “invasion” of LA by a foreign nation. Trump relies mainly on the claim that there is a “rebellion.” Judge Breyer effectively rebuts it. Utilizing definitions from the period around 1903 (when this law was enacted), he conclude a “rebellion” must have 4 characteristics:
First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue.
In addition to fitting contemporary understandings at the time of enactment, this definition has the virtue of ensuring that a “rebellion” is an unusual emergency situation, not an everyday occurrence. If “rebellion” is defined as any violent resistance to law enforcement, then rebellions are occurring in virtually every city virtually every day; for example, any time suspects forcibly resist arrest by police.
By this standard, events in LA obviously do not qualify as a “rebellion”:
The protests in Los Angeles fall far short of “rebellion.” Defendants refer repeatedly to “violent rioters,” and “mobs,” see, e.g., Opp. at 1, and so the Court pauses to state that there can be no debate that most protesters demonstrated peacefully. Nonetheless, it is also beyond debate that some individuals used the protests as an excuse for violence and destruction. Some bad actors on June 6 threw “concrete chunks, bottles of liquid, and other objects at … officers,” Santacruz Decl. ¶ 11, and used “chairs, dumpsters, and other i
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