Trump’s Bold Call to Deploy National Guard Raises Legal Questions
In 1934, during his defense of the National Firearms Act, Attorney General Homer S. Cummings openly recognized that there is no inherent right for the federal government to interfere in specific local areas to address crime. Despite this, President Donald Trump declared he is willing to do exactly that by utilizing the National Guard in cities like Chicago, New York, and Baltimore. This action far outreaches Trump’s crime-fighting efforts in Washington, D.C., a federal jurisdiction over which he has claimed control of the local National Guard and police force.
Trump now believes he can mobilize the National Guard to manage crime wherever he sees fit, even without the approval of state or local authorities. Asserting his role as the nation’s chief executive, he stated that being the president gives him ‘the right to do anything I want to do’ while dealing with crime. According to him, if he perceives the nation to be in danger, especially in these cities, he has the liberty to act.
Trump’s nationwide law enforcement ambitions, however, do not align with the restrictions acknowledged by Cummings. The powers explicitly granted to the federal government do not include a broad authority to safeguard the public from commonplace criminals. This responsibility is part of the police power, and under the 10th Amendment, it is reserved to the states.
Nonetheless, Trump believes he can supersede these federalist principles by calling upon the National Guard. The verdict, from the perspective of constitutional law, seems unambiguous. However, when considering the president’s statutory authority, the answer appears worryingly uncertain.
This ambiguity was highlighted when the government’s lawyers claimed that protests in Los Angeles against Trump’s immigration policies resulted in conditions that justified military intervention. U.S. District Judge Charles Breyer disagreed, issuing a temporary restraining order against the deployment. However, the U.S. Court of Appeals for the 9th Circuit overturned the order, stating that Trump’s decision under Section 12406 is deserving of significant deference.
At the same time, the 9th Circuit dismissed the administration’s primary argument, stating that the decision to federalize National Guard members under Section 12406 is not entirely immune to judicial review. However, based on Section 12406 terms, the deployment in California was apparently intended to guard federal buildings and personnel, aiding the enforcement of federal law.
The American Law Institute audited and proposed several necessary innovations to the Insurrection Act last year. The organization pointed out that certain ‘antique terms’ used in the act are unsettlingly vague and do not possess defined modern meanings. This vagueness exists in Section 12406, which refers to ‘rebellion’ and also mentions ‘obstructions, combinations, or assemblages.’
Unsurprisingly, the aforementioned section provides the president with extensive powers to single-handedly federalize the National Guard. As per 10 USC 253, the president can use ‘the militia or the armed forces, to suppress, in a state, any insurrection, domestic violence, unlawful combination, or conspiracy’ under specific conditions.
However, Section 253 also applies when any of the listed illegal activities ‘oppose or obstruct the execution’ of federal laws or ‘impede the course of justice under those laws.’ The focus remains firmly set on the enforcement of the federal law, which does not seem broad enough to encompass the wide-ranging public safety mission that Trump envisions.
Both Section 252 and Section 253 seem to provide the president with broad discretion in deciding a threat to federal authority. Section 252 takes effect ‘whenever the President considers’ that various illegal activities make law enforcement impracticable. Under Section 253, the president has the license to ‘take such measures as he considers necessary’ to quell ‘domestic violence, unlawful combination, or conspiracy’.
A recent executive order issued by Trump gives some insight into his strategy. Trump asked the Secretary of Defense, Pete Hegseth, to ‘designate an appropriate number of each state’s trained National Guard members to be reasonably available for rapid mobilization.’ He envisioned these members assisting Federal, State, and local law enforcement in quelling civil disturbances whenever needed, in accordance with the law.
Attorney General William Barr expanded on this by explaining that Trump ‘requested assistance from out-of-state National Guard personnel.’ This request serves to authorize states to dispatch forces assisting operations or missions under the control of the President or Secretary of Defense.
In a similar incident from a previous deployment, national security experts at the Brennan Center for Justice voiced their concerns about the potential abuse of power and related risks. Nunn, one such expert, cautioned against the Trump administration’s ‘unbounded interpretation’ of Section 502(f). This interpretation risks undermining the larger statutory system designed by the Congress to supervise the military deployment on domestic soil.
Integral to this system is the Posse Comitatus Act, which restricts the use of the armed forces for law enforcement, barring explicit authorization by the Constitution or Act of Congress. The validity of this restriction will be put to the test if Trump decides to proceed with his plan to combat crime on a national level.