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chairman Donald Trumpattempts to send National Guard Soldiers in American cities – including los angelesportland, oregonand Chicago – over the objections of Democratic mayors and governors to host questions about the president’s authority and who controls the Guard.
A judge in California has ruled that the deployment of 4,000 National Guard members — along with 700 Marines — to Los Angeles earlier this year violated federal law. A judge in Oregon issued two temporary restraining orders over the weekend, blocking the administration from deploying federal troops to protect federal property in that state. Chicago and Illinois There has been a lawsuit in hopes of getting a similar order. Texas National Guard troops have arrived in that state.
Amid rapid developments as the administration evolves, here’s a look at National Guard deployments, how they’ve been done before and the legality of Trump’s efforts to send troops to Democratic-led cities.
What are the rules for presidents activating the National Guard?
National Guard units are under the control of governors, who can activate them to respond to disasters such as hurricanes or wildfires in their own or other states, unless called up by the President.
Under federal law, the President may take command of a state’s National Guard troops in limited circumstances: when the United States is being invaded or is in danger of being invaded by a foreign nation; When there is rebellion or threat of rebellion against the United States; or when the President is “unable with regular forces to execute the laws of the United States.”
Trump says those conditions are taking place in cities he believes are overrun with crime and immigration protests. But his efforts in California and Oregon have been rejected by federal judges who believe he is overstepping his authority. A similar fight is playing out in Illinois, where the Democratic governor has resisted deploying Guard troops.
How is the President interpreting the authority on the Guard?
A key issue in lawsuits brought by states and cities seeking to block the deployment of National Guard troops to their communities is whether the President’s determination is final on whether there is a threat of insurrection, or whether the laws cannot be executed with “regular forces.”
The law requires that the conditions actually exist, said Brenner Fishel, a Villanova University law professor who is also vice president of the National Institute of Military Justice.
In the Los Angeles case, the 9th Circuit Court of Appeals stated that a president’s determination deserves “a great level of deference”, but that courts can review it to ensure that it fits “within the scope of honest judgment.”
In Oregon, U.S. District Judge Karin Immerzut temporarily blocked Trump’s deployment of the Guard, saying the facts on the ground — including nightly protests typically numbering a few dozen people, with occasional larger crowds and skirmishes — did not meet that test or warrant the federalization of 200 troops.
Administration lawyers have claimed that the courts cannot second-guess the president’s determinations. The Portland protests have strained the resources of the US Department of Homeland Security, requiring agents to be transferred there from other parts of the US and work 12-hour shifts, seven days a week. This shows that the department cannot protect federal property with “regular forces,” he argued.
But Fishel suggested that the consequences would be serious if the president could call out the National Guard in response to such small protests, over the objections of state and city leaders.
“If the president can, on his own, uselessly, determine when any of these prongs are present, then there is effectively no judicial protection against a military coup in this country,” Fishel said.
How have presidents relied on the Guard before?
Presidents repeatedly took command of state National Guard units during the civil rights era when Southern governors openly refused to comply with them. This included in 1957, when President Dwight D. Eisenhower took control of the Arkansas National Guard and sent nine black students to the Army’s 101st Airborne Division to allow Central High School in Little Rock to integrate.
In 1965, President Lyndon Johnson took control of the Alabama National Guard to ensure that civil rights demonstrators could march from Selma to Montgomery after state troopers attacked them. This was the last time a US President deployed the National Guard against the wishes of a governor.
Presidents have also federalized the National Guard at the invitation of governors to respond to unrest. Examples include when the governor of Michigan sought help controlling riots in Detroit that left dozens dead in 1967, and in 1992 when the governor of California asked President George H.W. Bush to help control riots over the acquittal of four white police officers who fatally shot black motorist Rodney King.
Can National Guard troops enforce law?
Generally, not when they come under the command of the President. The Posse Comitatus Act, which dates back to 1878, is a criminal law that prohibits the use of the military for domestic policing.
U.S. District Judge Charles Breyer in California found last month that Trump’s use of guards in Los Angeles this summer violated that law. Their decision is being taken as an appeal to the administration.
Cities and states challenging the deployment say they are fully able and prepared to execute the laws on their own and do not need federal intervention. Civilian police – not military soldiers – are trained in protecting First Amendment rights; in conducting arrests, traffic stops and crowd control; In de-escalation; and in using less lethal force.
Syracuse University law professor William Banks, an expert on constitutional law and national security, said that violations of the Posse Comitatus Act are punishable by up to two years in prison, but no such prosecution has ever been brought in American history.
“The criminal law aspect of it is not the point,” Banks said. “The issue is that it sets up a presumption that we don’t want soldiers on the street.”
There is one major exception to the Posse Comitatus Act: the President can invoke the Insurrection Act, which allows him to deploy military forces inside the US to suppress an insurrection or enforce the law. Presidents Eisenhower, Kennedy, and Johnson used the Insurrection Act to take control of the Guard during the civil rights era, and Bush to quell the LA riots.
Trump has suggested he is open to implementing it.
In that case, Banks said, “All the brakes are off the administration. He could absolutely militarize the city if he wanted to. He could tell everybody to stay in their homes.”
What does the National Guard do?
The National Guard has hundreds of thousands of part-time soldiers, many of whom are college students or have day jobs in their civilian lives. They regularly drill for a week at a time with an annual two-week training session. They may be deployed overseas in support of combat or to conduct missions such as building schools, or they may be sent within the US in response to disasters or civil unrest.
The origins of the Guard date back to 1636, when the first colonywide militia regiments in North America were organized in Massachusetts. Other colonies formed their own militias, which fought under General George Washington during the Revolutionary War.
Because of the abuses of the British military, the framers of the Constitution opposed the idea of a standing army controlled by the President. The militia were placed under the control of the states, and Congress was given the responsibility of determining under what circumstances the President could call them into service.