Los Angeles Protests National Guard Presidential Powers : “What does Trump have to send to cities — even if they don’t want them”
Mirasola was worried about the political pressure that might move beyond the limited ambit of what is included in the protective power.
Before withdrawing any personnel from any location to which they’re sent, the Secretary of Defense will need to consult with the Attorney General and the Secretary of Homeland Security.
And that may happen given, in Mirasola’s view, the presidential memorandum is extremely broad and, on its face, doesn’t appear limited to LA. In fact, “Los Angeles” is not explicitly stated in the memo’s text and the secretary of defense is given wide latitude to issue military protective activities.
Mirasola warned that if the National Guard moved beyond this more limited role, then we would see overstepping of the legal theory behind the deployment in LA.
In the past, this provision has “been used along with the Insurrection Act,” Goitein said. “It hasn’t been used as a standalone authority, and whether it can provide on its own the substantive authority to do the things that President Trump is doing would be a question” for the courts, if it gets there.
She said the courts have not had the opportunity to decide if the military can perform important law enforcement functions in a situation like Los Angeles.
Federal troops are prohibited from using military force against civilians in normal law enforcement, according to Goitein.
Source: What powers does Trump have to send troops to cities — even if they don’t want them
The Los Angeles-area protests as a rebellion against authority of the Government of the U.S.: A federal response to the first protests against the insurrection
Goitein noted this is not a new idea and has been put forward by the executive branch for many decades — including during Trump’s first administration.
The National Guard deployment was necessary and defendable as these violent protests threaten the security of and significant damage to Federal immigration facility and other Federal property and that the demonstrations constitute a form of rebellion against authority of the Government of the U.S.
In Los Angeles last week and into the weekend Immigration and Customs Enforcement launched operations detaining and arresting more than 100 people across the city. The people of the city and surrounding areas took to the streets in response to the raids. During the clashes, protesters were met with pepper spray and tear gas by law enforcement.
According to Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, this is the first time since 1964 that a president has called the National Guard to respond to unrest without a request from the governor.
Additionally, on Monday, a defense official confirmed to NPR that 700 Marines based out of Twentynine Palms, Calif., have been mobilized for LA and are expected to operate in a “support role” and perform the same duties as the National Guard.
The “extremely rare exception to this rule” is the Insurrection Act, a set of laws that give the president authority to use federal troops to quell civil unrest in a crisis, Goitein said. The Insurrection Act, which predates the development of modern state and local police departments, allows federal troops to engage in law enforcement activities, like searches, seizures and arrests.
This act has not yet been invoked by the White House in Los Angeles, despite the fact that Trump and his allies have referred to the protesters as “insurrectionists.” Trump said on Sunday that so far he didn’t see the basis for invoking the Insurrection Act, though he left open the possibility of doing that in the future.
“It hasn’t been used since 1992 and it hasn’t been used without a state request,” she said. George W. Bush used it to calm the violence in Los Angeles after the jury acquitted the police officers.
Title 10 of the U.S. Code onArmed Services includes “10 U.S.C. 12406.” The president can send federal troops to defend the U.S government if there is a rebellion against it.
The president exceeded his Title 10 authority, not only because the takeover occurred without the consent of the Governor, as federal law requires, but also due to the fact that it was unwarranted.
Steve Vladeck said on his Substack that if the National Guard invoked this provision they wouldn’t be able to conduct immigration raids or arrest their own kin, but only ensure the protection and safety of Federal personnel.
The president is also justifying calling the military to LA by seemingly pointing to an implied authority in Article 2 of the Constitution, according to Christopher Mirasola, an assistant professor at the University of Houston Law Center.
This implied constitutional authority, called the protective power, is a debated theory of presidential power that says the president holds inherent constitutional authority to use the military to protect federal functions, properties and persons, Mirasola said.
Michel Martin: So given your role in Armed Services, and you’re also a lawyer by training, do you believe the president is acting legally in calling up active duty military?
Smith: What should happen now is the court should rule that the president is again abusing his emergency power. This is not an emergency as defined in the statute. You cannot just say ‘well in case of an emergency’ and allow the president to define it as he pleases. He should not be allowed to bring in those troops. The president should de-escalate and the protesters should do the same.
President Trump wants this confrontation partially because he wants to emphasize the issue of immigration enforcement, but more, I fear, because he wants to politicize the U.S. military and legitimize using it as a law enforcement tool, which is incredibly dangerous.
Martin: I can imagine that it is somewhat galling to someone like yourself who was trapped on Capitol Hill during the January 6th mob attack on the Capitol, when President Trump took many hours to condemn the violence or call for reinforcements for the law enforcement officers who are trying to hold the Capitol and protect people like yourself then. John Fetterman, your Democratic senator, said that the scenes in L.A. were “anarchy and true chaos.” He said Democrats lose their moral high ground when they do not condemn the violence from protesters. What should you say to that?
Smith: Absolutely, first of all. On January 6th, there was an insurrection at the Capitol. People were actually trying to stop the election of a president. They were threatening to kill the Vice President. That was an actual insurrection that the president chose to ignore. The man has pardoned the people involved and downplayed the event. That’s completely unacceptable.
Adam Smith, the top democrat on the House Armed Services Committee, believes that President Trump will use the US military as his personal police force.