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| From New York Times |
The key statute on which the Trump administration is relying for its authority to mobilize the National Guard for purposes of fighting protesters in downtown Los Angeles is 10 U.S.C. § 12406. It states in full:
§12406. National Guard in Federal service: call
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. Orders for these purposes shall be
issued through the governors of the States or, in the case of the
District of Columbia, through the commanding general of the National
Guard of the District of Columbia.
The section in bold makes it clear that presidents lack any direct command authority over the national guard, even in federal service. The statutory scheme is consistent with U.S. federalism. Were Congress to prefer providing direct authority to the President, the sentence in bold would not have been included.
Relying on the plain text of the statute, U.S. District Court Judge Charles Breyer held that there was no clear evidence that supported any of the threshold requirements, and that the manner by which Sec. of Defense Pete Hegseth mobilized the National Guard also was unlawful:
Regardless of whether Defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California’s National Guard, they did not issue their orders through him, and thus failed to comply with § 12406. Emphasis added.
Judge Breyer finds that the government did not provide sufficient evidence to meet any of the criteria laid forth for a lawful call of the National Guard to federal service, including Sec. 3, finding that the claim protests were impeding the execution of deportation laws largely speculative.
In reviewing the context of the protests, Judge Breyer astutely notes that National Guard presence itself triggered further unrest. Indeed, the National Guard itself has made this finding. In an April 26, 2024 report on training exercises, the Wisconsin National Guard noted:
“Even in a simulated environment, mob mentality can take over,” Johns said. “That is doubly true in real life.”
Police
and Guard forces who presented a more aggressive posture when arriving
on the scene were often met with more rapid and extreme escalation by
the simulated demonstrators, Johns said.
“While maintaining a
safe protective posture is important, we need to be careful not to
create violent crowds out of peaceful ones as we perform our NGRF
mission,” he said.
Am sharing this quotation and link here because it may be relevant to evidentiary findings as to whether here or in other contexts the inability to execute federal laws is actually caused by an overreaction of the National Guard itself. Insofar as this effect is itself documented by the National Guard, it would suggest that the government (and Court) should be alert to how the aggressive presence of the National Guard is itself impeding lawful execution of deportation laws.
More generally, a President unable to execute laws due to operational failures reflecting discretionary public relations antics, e.g., workplace raids and not targeted arrests of criminal noncitizens, should not be rewarded for poor decision-making with enhanced powers.
