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| Protesters express their sentiments (Orange County Register) |
Donald Trump long has been known as a political street fighter, who will engage in feuds of all varieties -- with foes, former friends and allies, enemies (both real and imagined), even family members (except, of course, Ivanka). As of yesterday, Trump is engaged in a real street fight, and he seems to enjoy fanning the flames. It gives Trump an opportunity to play "tough guy," and Lord knows, Trump loves being portrayed as a tough guy -- no matter how many people are injured or killed in the process.
The New York Times (NYT) has the latest story under the headline "What to Know About the Immigration Protests in Los Angeles; Demonstrations against the Trump administration’s immigration crackdown have been largely peaceful, but tensions flared after President Trump ordered National Guard troops to deploy to the city"
The Times' story is the most disturbing account of American life in the age of Trump since the violence and carnage at the U.S. Capitol on Jan. 6, 2021, which was launched in part by the actions of Alabama-connected extremist Ali (Akbar) Alexander, who has been the subject of more than 30 posts here at Legal Schnauzer -- including posts about an investigation of Alexander in Johnstown, CO, for "solicitation of a minor." That grew from a police report in which Alexander is alleged to have sought "d--k pics" from teen boys. Two of the alleged victims reportedly were ages 15 and 17 at the time. This is the kind of person with whom Trump associates, and we will have more on that in upcoming posts. Not only is Trump a poor judge of people, but he has great difficulty following the law. Maybe that is why he is America's first convicted felon/adjudicated rapist/confessed sexual abuser president.
Trump's poor judgment is on display right now in Los Angeles, where he called out the National Guard and Marines to deal with protests over his own immigration policies, which trample the law and any notion of due process. The protests have been widely described in news accounts as peaceful. Trump surely will point to arrests as a sign that protesters were unruly. But he is the one committing major violations of law, as we will show in a moment.
Californians have not taken kindly to Trump's aggressive actions, largely bypassing the state's leaders, according to The Times:
As Los Angeles braced for more confrontations between law enforcement and demonstrators, the United States Northern Command said on Monday that the Trump administration was deploying a battalion of 700 Marines to the city to protect federal property and personnel.
The Marines were set to join hundreds of members of the California National Guard who deployed to Los Angeles on Sunday. The Guard troops were called in by President Trump, against the wishes of Gov. Gavin Newsom, after days of clashes over the weekend between the authorities and demonstrators protesting the Trump administration’s crackdown on immigration.
California’s Democratic leaders have condemned Mr. Trump’s moves. Mr. Newsom said that the order to deploy the National Guard was “purposefully inflammatory” and called for it to be rescinded. On Monday afternoon, he said the order to send hundreds of Marines to California was “a provocation, not just an escalation.”
The state attorney general, Rob Bonta, said California would file a lawsuit against the Trump administration over its move to take control of the state’s National Guard and deploy troops to Los Angeles to protect immigration enforcement agents.
The protests have been largely peaceful but have flared up in pockets of downtown Los Angeles and in nearby suburbs, as well as in San Francisco.
Protests broke out on Friday when federal agents searched the city’s garment district for workers whom they suspected of being undocumented immigrants, as part of the Trump administration’s new focus on raiding workplaces. They were met with protesters, who chanted and threw eggs before being dispersed by law enforcement with pepper spray and nonlethal bullets.
Demonstrations continued Saturday, both downtown and in the mostly Latino and working-class suburb of Paramount, about 15 miles to the south. Law enforcement officers made arrests and in some cases used crowd-control munitions, tear gas and flash-bang grenades against the protesters.
Mr. Trump signed a memo on Saturday ordering 2,000 National Guard members to deploy to Los Angeles to protect federal officers conducting immigration operations, despite the objections of Mr. Newsom and Mayor Karen Bass of Los Angeles.
On Sunday, nearly 300 members of the California National Guard took positions in the city. Demonstrations on Sunday afternoon near a downtown detention center were largely peaceful, but some protesters fired fireworks at police officers under a bridge on the nearby U.S. 101 freeway. Several driverless Waymo cars were set on fire in downtown Los Angeles.
The protests were “getting increasingly worse and more violent,” Chief McDonnell of the L.A.P.D. said on Sunday, blaming the violence on “anarchists” and “people who do this all the time,” not people protesting immigration raids.
More than 150 people have been arrested in Los Angeles since Friday, officials said. About 150 more were arrested in San Francisco, where demonstrators and police officers fought on a downtown street on Sunday night.
Did Trump act lawfully by calling in the National Guard and Marines? That question appears to be unsettled, although governors generally control such deployments in their states. That did not happen in this case, raising questions if Trump acted beyond his authority, perhaps recklessly. From The Times:
The National Guard is the only branch of the military that can be deployed both by state governors and by the president. Governors almost always control deployment in their states.
The Guard operates similarly to the Army’s reserve force. Most of its members do not serve full time. They generally hold civilian jobs and attend regular training sessions, and are called into active service only when needed. The Guard is most often called upon during extreme weather events like hurricanes, floods and wildfires.
Before Mr. Trump’s move, the last time a president activated a state’s National Guard troops for such a purpose without being asked to do so by the state’s governor was in 1965, according to Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, an independent law and policy organization.
On that occasion, she said, President Lyndon B. Johnson used troops to protect civil rights demonstrators in Alabama.
Signs point to the possibility that Trump is making creative use of language in an effort to justify his actions. California leaders do not seem to be buying it:
On Monday, Mr. Trump said that the protesters in Los Angeles “are insurrectionists,” appearing to adopt a rationale that could allow him to invoke the 1807 Insurrection Act and use active-duty U.S. military personnel to deal with protests.
California’s Democratic leaders have blasted Mr. Trump’s moves, saying that the order to deploy the National Guard was unnecessary and an inappropriate use of power, while urging protesters to remain peaceful.
In an interview with The New York Times on Monday, Mr. Newsom said the decision to send the Marines to Los Angeles was “intended to sow more fear, more anger and to further divide.”
Appearing on CNN on Monday morning, Ms. Bass, the mayor, said that on “a few streets downtown, it looks horrible,” but that there was “not citywide civil unrest.” She added that anyone who destroyed cars or engaged in violence would be prosecuted.
Perhaps the question of the moment is one reflected in a Reuters headline: "Does US law allow Trump to send troops to quell protests? Dietrich Knauth writes:
President Donald Trump deployed National Guard troops to California after days of protests by hundreds of demonstrators against immigration raids, saying the protests interfered with federal law enforcement and framing them as a possible “form of rebellion” against the authority of the U.S. government. Defense Secretary Pete Hegseth on Monday mobilized 700 active duty Marines as part of the government’s response to the protests.
California sued the Trump administration on Monday to end the "unlawful" deployment of troops in Los Angeles County and return the state National Guard to California Governor Gavin Newsom's command.
WHAT LAWS DID TRUMP CITE TO JUSTIFY THE DEPLOYMENT?
Trump cited U.S. Code Title 10, Sec. 12406, 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 12 - 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.”
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 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 is the gist of the Posse Comitatus Act? This is from an article at the Brennan Center for Justice:
WHAT DOES THE POSSE COMITATUS ACT SAY?
The Posse Comitatus Act consists of just one sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air 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.”
In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless doing so is expressly authorized by a statute or the Constitution.
That seems straightforward enough, but the Reuters article shows there are other issues to consider. Dietrich Knauth writes:
WHAT DOES CALIFORNIA'S LAWSUIT SAY?
California's lawsuit said the deployment of troops in the state without the governor's consent violates federal law and the U.S. Constitution's 10th Amendment, which protects states' rights.
The state argues the deployment does not meet any of the requirements in Title 10 because there was no “rebellion,” no "invasion" and no situation that prevented the enforcement of U.S. laws in the state.Trump also did not consult with Newsom before deploying the National Guard, violating Section 12406's requirement that orders to deploy the National Guard "shall be issued through the governors of the States," according to the lawsuit.
WHAT IS THE LAWSUIT ASKING FOR?
The lawsuit seeks a declaration from the court Trump's order is unlawful and an injunction blocking it from being enforced.
HOW MIGHT A COURT VIEW THE DISPUTE?
There is little precedent for such a dispute. Section 12406 has only been invoked once to deploy the National Guard, when President Richard Nixon called upon it to deliver the mail during the 1970 Postal Service Strike, according to Bonta.
Five legal experts from both left- and right-leaning advocacy organizations cast doubt on Trump’s use of Title 10 in response to the immigration protests and called it inflammatory and reckless, especially without Newsom's support.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.
Legal experts were split on whether a court would back Newsom’s interpretation of the governor’s role under Section 12406.
Courts have traditionally given great weight to the word “shall” in interpreting other laws, which supports Newsom's position that governors must be involved in calling in the National Guard. But other experts said the law was written 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.
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.
Senior White House officials, including Vice President JD Vance and senior White House aide Stephen Miller, have used the term "insurrection" when discussing the protests, but the administration has stopped short of invoking the act thus far.
It 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 trial of Los Angeles police officers who beat Black motorist Rodney King.
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.
WHAT ABOUT THE MARINES?
Trump has more direct authority over the Marines than the National Guard, under Title 10 and in his constitutional role as commander in chief of the armed forces, legal experts said.
But unless Trump invokes the Insurrection Act, the Marines are subject to legal restrictions that prevent them from taking part in "any search, seizure, arrest or other similar activity." The Defense Department said on Monday that the Marines were ready to support the National Guard's efforts to protect federal personnel and federal property in Los Angeles, emphasizing the relatively limited scope of their role at the moment.
Let's return to the Reuters question of the moment: Does U.S. law allow Trump to send troops to quell protests?
We have highlighted in blue the sections above that address that question. Here is a brief summary of what those sections tell us:
(1) The Posse Comitatus Act is clear: Members of the military who are subject to the law may not participate in civilian law enforcement, unless doing so is expressly authorized by a statute or the Constitution;
(2) California's lawsuit is clear:
a. The deployment of troops in the state without the governor's consent violates federal law and the U.S. Constitution's 10th Amendment, which protects states' rights;
b. The deployment does not meet any of the requirements in Title 10 because there was no “rebellion,” no "invasion" and no situation that prevented the enforcement of U.S. laws in the state.
c. Trump did not consult with Newsom before deploying the National Guard, violating Section 12406's requirement that orders to deploy the National Guard "shall be issued through the governors of the States."
d. The lawsuit, of course, has not been decided, but the legal holdings noted above indicate the people of California and their leaders are on solid footing.
(3) Legal experts from both left- and right-leaning advocacy organizations cast doubt on Trump’s use of Title 10 in response to the immigration protests and called it inflammatory and reckless, especially without Newsom's support.
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