By Dietrich Knauth
President Donald Trump has deployed National Guard troops to California after two days of protests by hundreds of demonstrators against immigration raids, saying that the protests interfered with federal law enforcement and framing them as a possible “form of rebellion” against the authority of the U.S. government.
California Governor Gavin Newsom on Sunday said he had formally requested that the Trump Administration rescind “its unlawful deployment of troops in Los Angeles County” and return them to his command.
WHAT LAWS DID TRUMP CITE TO JUSTIFY THE MOVE?
Trump cited Title 10 of the U.S. Code, a federal law that outlines the role of the U.S. Armed Forces, in his June 7 order to call members of the California National Guard into federal service.
A provision of Title 10 – Section 12406 – allows the president to deploy National Guard units into federal service if the U.S. is invaded, there is a “rebellion or danger of rebellion” or the president is “unable with the regular forces to execute the laws of the United States.”
WHAT ARE NATIONAL GUARD TROOPS ALLOWED TO DO UNDER THE LAW CITED IN TRUMP’S ORDER?
An 1878 law, the Posse Comitatus Act, generally forbids the U.S. military, including the National Guard, from taking part in civilian law enforcement.
Section 12406 does not override that prohibition, but it allows the troops to protect federal agents who are carrying out law enforcement activity and to protect federal property.
For example, National Guard troops cannot arrest protesters, but they could protect U.S. Immigration and Customs Enforcement who are carrying out arrests.
WHAT ARE THE IMPLICATIONS FOR FREEDOM OF SPEECH?
The First Amendment of the U.S. Constitution guarantees the right to assembly, freedom of speech and the press.
Experts have said that Trump’s decision to have U.S. troops respond to protests is an ominous sign for how far the president is willing to go to repress political speech and activity that he disagrees with or that criticizes his administration’s policies.
IS TRUMP’S MOVE SUSCEPTIBLE TO LEGAL CHALLENGES?
Four legal experts from both left- and right-leaning advocacy organizations have cast doubt on Trump’s use of Title 10 in response to immigration protests calling it inflammatory and reckless, especially without the support of California’s Democratic Governor Gavin Newsom, who has said Trump’s actions would only escalate tensions.
The protests in California do not rise to the level of “rebellion” and do not prevent the federal government from executing the laws of the United States, experts said.
Title 10 also says “orders for these purposes shall be issued through the governors of the States,” but legal experts said that language might not be an obstacle. Legislative history suggests that those words were likely meant to reflect the norms of how National Guard troops are typically deployed, rather than giving a governor the option to not comply with a president’s decision to deploy troops.
COULD CALIFORNIA SUE TO CHALLENGE TRUMP’S MOVE?
California could file a lawsuit, arguing that deployment of National Guard troops was not justified by Title 10 because there was no “rebellion” or threat to law enforcement. A lawsuit might take months to resolve, and the outcome would be uncertain. Because the protests may be over before a lawsuit is resolved, the decision to sue might be more of a political question than a legal one, experts said.
WHAT OTHER LAWS COULD TRUMP INVOKE TO DIRECT THE NATIONAL GUARD OR OTHER U.S MILITARY TROOPS?
Trump could take a more far-reaching step by invoking the Insurrection Act of 1792, which would allow troops to directly participate in civilian law enforcement, for which there is little recent precedent.
Casting protests as an “insurrection” that requires the deployment of troops against U.S. citizens would be riskier legal territory, one legal expert said, in part because mostly peaceful protests and minor incidents aren’t the sort of thing that the Insurrection Act were designed to address.
The Insurrection Act has been used by past presidents to deploy troops within the U.S. in response to crises like the 1794 Whiskey Rebellion and the rise of the Ku Klux Klan in the immediate aftermath of the American Civil War. The law was last invoked by President George H.W. Bush in 1992, when the governor of California requested military aid to suppress unrest in Los Angeles following the Rodney King trial.
But, the last time a president deployed the National Guard in a state without a request from that state’s governor was 1965, when President Lyndon Johnson sent troops to protect civil rights demonstrators in Montgomery, Alabama.
(Reporting by Dietrich Knauth in New York and Tom Hals in Wilmington, Delaware, Editing by Alexia Garamfalvi, Amy Stevens and Aurora Ellis)
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