Trump Deployed the National Guard. But What Does That Mean?

Title 10 federalization, the Insurrection Act and Posse Comitatus

Images courtesy of the Economic Times

Yesterday, “Border Czar” Tom Homan went on Fox and announced that, in response to Los Angeles Mayor Karen Bass’s criticisms, the White House was “already mobilizing” and was bringing in the National Guard that night.

Homan of course can’t make this call, and there are only limited circumstances where the President can deploy U.S. troops on domestic soil.

Later, however, California Governor Gavin Newsom confirmed that the White House was indeed preparing to send in the National Guard. He tweeted,

The federal government is moving to take over the California National Guard and deploy 2,000 soldiers. That move is purposefully inflammatory and will only escalate tensions.

A great deal of confusion quickly ensued across social media and among legal experts. Under what authority was Trump acting, if he didn’t have Gov. Newsom’s consent to deploy the guard? Was this under a Title 10 federalization, or was it an actual invocation of the Insurrection Act?

Was this the start of martial law?!

In today’s extra Sunday edition, I want to address what has and importantly has not happened with respect to this deployment. As we look ahead, we need to keep straight what powers and authority Trump has invoked and which he is holding in his pocket. This will help us be clear-eyed about the most probable risks, and it will better inform what our next steps in response should be.

Title 10 federalization

Following Gov. Newsom’s announcement, later yesterday evening the White House issued a formal memorandum confirming that Trump was indeed federalizing 2,000 California National Guard members and deploying them to Los Angeles. The memorandum’s language is important because it specifies the grounds for the escalation:

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….

Zero in on the statute cited above. That’s notably not the Insurrection Act. So what is it?

This is commonly referred to as “Title 10”—a law that permits “federalization” of the National Guard. To understand what that means, we have to look at the two more normal duty statuses of the National Guard.

Generally speaking, states are responsible for overseeing and paying for their own national guards. That’s called “state active duty,” and it’s common for disaster relief efforts or even civil disturbances.

Then there’s what’s called “Title 32” duty, also known as “full-time national guard duty.” This status allows for both state and federal missions, such as training exercises. In both state active duty and full-time national guard duty, the National Guard remains under the state governors’ control.

Enter Title 10. This is known as “active duty,” and it means the National Guard operates under federal command by order of the President. They go on federal missions and receive U.S. government paychecks while “federalized” under Title 10.

So what is Title 10, Section 12406? Here’s what the statute says specifically. Thankfully, it’s short!

Whenever—

(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;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.

The memo Trump issued last night sheds some light on what aspect of Title 10 the White House is leaning on to justify its federalization of 2,000 California National Guard members. The memo states, “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.”(Emphasis added.)

So here’s the part that’s a bit hard to grasp at first. Title 10 permits the President to federalize the troops and put them under his command. But what they are permitted to do as military troops operating on domestic soil is still governed by other laws.

And one of those laws is the Posse Comitatus Act. So let’s review what that says.

Posse Comitatus and the prohibition on law enforcement activity by the military

In a piece written back in October of last year, I flagged the “Posse Comitatus Act” as something to dig back up. I did this primarily because there is an important exception to that Act that many feared Trump would try to invoke should he be reelected. More on that in a bit.

So what is this odd Latin phrase about? A “posse comitatus” happens when local law enforcement summons local citizenry to assist in the act of enforcing the law. During the presidency of Rutherford Hayes, labor unrest grew around the country as economic conditions deteriorated. The Great Railroad Strike of 1877 began after local militias fired upon striking workers. As tensions mounted, the National Guard, supported by federal troops, was called in to suppress the striking workers. The result was tragic, with over 100 people killed in the ensuing violence.

The passage of the Posse Comitatus Act the following year prevented federal forces from being used to put down such labor unrest. “States Rights” advocates in the South also wanted its passage because they feared federal troops from the North would be used to suppress the activities of the Ku Klux Klan and other racist terrorists.

What resulted was an important limitation on the use of the U.S. military to enforce domestic laws. The Act, as amended since, is just one sentence long. But it is a linchpin of our democracy.

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.

Today, the Posse Comitatus Act stands for the general principle that the military cannot interfere in civilian affairs absent express legal authority.

Remember what I said above about how Title 10 only federalizes troops, but that they still have to follow all other laws? The big one is the Posse Comitatus Act, meaning they can’t actually be used to interfere in civilian law enforcement unless expressly authorized.

Let’s stop here for a moment. The White House, so far, has issued no express authorization for the 2,000 federalized National Guard members to act as local law enforcement. For that to happen, it has to turn to an exception to the Posse Comitatus Act: in this case, the Insurrection Act.

A power rarely used, and almost never without the consent of the state

A huge exception to the Posse Comitatus Act is where the President declares that there is an insurrection underway and calls in federal troops to suppress it. There are three circumstances where this is permitted:

1. when requested by a state to address an insurrection against that state;

2. to address an insurrection, in any state, which makes it impracticable to enforce the law;

3. to address an insurrection, domestic violence, unlawful combination or conspiracy, in any state, which results in the deprivation of a constitutionally secured right, and where the state is unable, fails or refuses to protect those rights.

Because our laws are so very clear and easy to follow, the word “insurrection” is nowhere defined in the Act.

But it’s already clear that Gov. Newsom has not requested help to stop an insurrection. It’s also not “impracticable” to enforce the law, even though it may have gotten more challenging for ICE. And it’s unclear what “constitutionally secured right” could be endangered by protests against ICE actions, especially where the state has already handled the protests without the help of federalized National Guard troops.

Trump will likely need a much more explosive situation to invoke the Insurrection Act and have it pass legal muster. He is trying to provoke that, but we ain’t there yet.

Let’s not jump straight to “martial law”

A quick word on a common and even understandable reaction. What is happening in Los Angeles with the National Guard is not “martial law.” That’s a term that’s nowhere defined in the Constitution, but it historically has meant civilian rule by the military. That means all courts, police and prisons are run by the military, habeas corpus is suspended, and press freedoms and other rights to assembly and free speech are terminated or severely curtailed.

We don’t have anything close to that in Los Angeles or anywhere else in America. At least not yet. Frankly, the military is already stretched thin, so it is hard to conceive of how it would attempt to run our entire government, especially with an incompetent drunk in charge. Nor would the people, as we are currently conditioned, put up with it.

As discussed, we aren’t quite at the “Insurrection Act” invocation stage, so it’s important not to get far out over our skis and stoke premature fears of actual military rule. If it ever comes to that, our troops will need to remember their oaths to obey and uphold the U.S. Constitution, not a mad king.

But just because Los Angeles isn’t under martial law doesn’t mean this is not a massive and intentionally provocative escalation by the White House and a big step in the direction of autocratic rule.

Where things may be headed

Now that we have the legal framework and an understanding of things are supposed to work when the White House federalizes national guard troops, there are three important caveats to note.

First, just because the law prohibits Trump from deploying the national guard in a way that violates the Posse Comitatus Act doesn’t mean he won’t attempt it. In fact, given Trump’s record so far, we should fully expect that he will willfully violate the law. We should anticipate that he will seek to deploy National Guard troops in a direct, local law enforcement capacity, in particular as a kind of forbidden posse comitatus to assist ICE on the ground. Civil rights groups should be prepared to challenge the presence of a militarized presence in Los Angeles—which could continue for at least 60 days, according to Trump’s memo—on these legal grounds.

Second, Defense Secretary Pete Hegseth has added gasoline to the fire by stating that active duty marines at nearby Camp Pendleton are ready to augment federal forces in Los Angeles should the “violence” continue. That would be an unprecedented escalation, pitting actual marines intended for national defense against civilian protestors on U.S. soil. Hegseth is dangerous and out of his league, and mind, here.

Third, the use of federalized National Guard troops on the ground under Title 10 is an opening that can grow far wider, not only by the deployment of other federal troops but as a precursor to an invocation of the Insurrection Act. For years. Trump has been itching to deploy that power. The last time troops were deployed against the wishes of a state governor occurred 60 years ago with President Johnson, who invoked his authority under the Insurrection Act and sent troops to the South to protect civil rights marchers against the wishes of racist state governors. Today, Trump wants to accustom the American people to the sight of federal troops performing law enforcement activity so that, when he ultimately pulls the trigger on the Insurrection Act, there is less public resistance to the idea.

That is why loud and sustained protest against the presence of federalized troops in a U.S. city must continue until the troops are gone. I’ll write tomorrow more generally about the tinderbox that the White House has intentionally created in order to provoke violent reaction and justify ever greater military presence.

Knowing what Stephen Miller’s game is will help guide our actions as we resist, as peacefully as possible, the horrors and abuses that ICE and other federal authorities are inflicting upon our friends, neighbors and families.

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I hope this summary has been helpful to your understanding. I want to take the time to thank those who have been supportive of my work through paid subscriptions to this newsletter. It’s always been free for everyone, but I am sustained only through voluntary support from readers here. If you’d like to show your appreciation for me going the extra mile today, the best way to do that is to upgrade to a paid subscription today. We have a long hot summer ahead, but I’ll be with you the whole way. — Jay