California Sues Trump Over Unprecedented Federal Seizure Of State National Guard
from the abuse-of-power dept
This weekend, Donald Trump pulled off something that’s happened exactly once before in US history: federalizing a state’s National Guard over the state governor’s objections without invoking the Insurrection Act. And he did it to deal with what the LAPD itself described as peaceful protests that were “under control.”
The constitutional implications here are important. Trump bypassed California Governor Gavin Newsom entirely, ordering Defense Secretary Pete Hegseth to directly command 2,000—then another 2,000—California National Guard members under 10 USC 12406, a statute that explicitly requires such orders to go “through the governors of the States.”
This isn’t just another Trump tantrum. It’s a fundamental violation of the constitutional balance between federal and state authority that the Founders specifically designed to prevent military rule. In the last few months we’ve seen so many attacks on the basic constitutional underpinnings of America that it’s easy to brush this off as just another one. But this attack on the American way is the most serious one yet.
It’s fundamentally removing some of the most basic freedoms guaranteed by the Constitution, and making the US into a full-on authoritarian police state.
On Monday, Gavin Newsom officially sued Donald Trump and the US government over the National Guard deployment, likely the first of multiple attempts to fight this egregiously unnecessary authoritarian attack on the people of California:
The Governor of the State of California and the State of California bring this action to protect the State against the illegal actions of the President, Secretary of Defense, and Department of Defense to deploy members of the California National Guard, without lawful authority, and in violation of the Constitution.
One of the cornerstones of our Nation and our democracy is that our people are governed by civil, not military, rule. The Founders enshrined these principles in our Constitution— that a government should be accountable to its people, guided by the rule of law, and one of civil authority, not military rule.
President Trump has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority. On Saturday, June 7, he used a protest that local authorities had under control to make another unprecedented power grab, this time at the cost of the sovereignty of the State of California and in disregard of the authority and role of the Governor as commander-in-chief of the State’s National Guard.
The lawsuit gets to the heart of what makes this so dangerous: Trump manufacturing a crisis to justify expanding executive power. The protests in Los Angeles were, by all accounts—including from the LAPD—under control. The few incidents that did occur (some Waymo cars getting tagged and burned, apparently in response to ICE agents arriving in Waymos) hardly constitute the kind of emergency that would justify federal military intervention.
The complaint also details how the mechanism Trump used for this, 10 USC 12406, is entirely inappropriate for this situation:
The vehicle the President has sought to invoke for this unprecedented usurpation of state authority and resources is a statute, 10 U.S.C. § 12406, that has been invoked on its own only once before and for highly unusual circumstances not presented here. Invoking this statute, the President issued a Memorandum on June 7, 2025 (Trump Memo), “call[ing] into Federal service members and units of the National Guard.” Secretary of Defense Hegseth, in turn, issued a Memorandum (DOD Order) that same day to the Adjutant General of California, ordering 2,000 California National Guard members into federal service. And on June 9, 2025, Secretary Hegseth issued another Memorandum (June 9 DOD Order) ordering an additional 2,000 California National Guard members into federal service.
These orders were issued despite the text of section 12406, which, among other things, requires that when the President calls members of a State National Guard into federal service pursuant to that statute, those orders “shall be issued through the governors of the States.” 10 U.S.C. § 12406. Instead, Secretary Hegseth unlawfully bypassed the Governor of California, issuing an order that by statute must go through him.
This isn’t some arcane procedural rule Trump’s team missed. The requirement that federal activation orders go through governors exists precisely to prevent exactly this kind of federal overreach:
The Constitution reserves to the States power over their respective state militias— now the National Guard— unless the State requests or consents to federal control. Only under the most exigent of circumstances can the President, over the objections of a State, call the National Guard into federal service. The balance the Framers struck between the State’s power to control its own militia and the very narrow circumstances in which the federal government may take command and control of the militia serves as a vital check against federal overreach. Section 12406 does not provide the authority Defendants have claimed and cannot be the vehicle for their actions.
The Constitution grants the States—not the federal Executive—the authority to conduct ordinary law enforcement activities and to determine how their own state laws should be enforced.
Reflecting the Founders’ distrust of military rule, the U.S. Constitution and the laws of our Nation strictly limit the domestic use of the military, including the federalized National Guard. The Posse Comitatus Act codifies these strict rules, prohibiting the military from engaging in civil law enforcement unless explicitly authorized by law. The authority to use the military domestically for civil law enforcement is reserved for dire, narrow circumstances, none of which is present here. Defendants have overstepped the bounds of law and are intent on going as far as they can to use the military in unprecedented, unlawful ways
What we’re seeing here is the classic authoritarian escalation pattern: manufacture a crisis, claim existing authorities are insufficient, then grab unprecedented power to “solve” the manufactured problem. Stephen Miller, who’s been openly fantasizing about using military force against domestic protests, has found his test case—and the fact that it’s so obviously a manufactured crisis shows just how desperate they are to normalize military intervention in civilian law enforcement.
Multiple videos show people dancing in the streets, rather than anything resembling a “riot.” This is what Trump claims requires 4,000 National Guard troops:
Or this:
This isn’t a riot. It’s certainly not an insurrection. It’s a protest in the grand tradition of American protests: calling out authoritarian abuse of power and showing solidarity those victimized by it. It’s American as apple pie.
The whole goal here is normalizing military intervention in civilian law enforcement while establishing precedent for bypassing state authority entirely. If Trump can federalize California’s National Guard over peaceful protests that local authorities had under control, what else will he demand the military do for him?
The most damning part of all this? For years, we’ve heard MAGA world shriek about hypothetical martial law and federal tyranny. Now, faced with actual federal seizure of state military assets over manufactured emergencies, they’re cheering it on. Turns out their “principled” opposition to government overreach only applied when it wasn’t their guy doing the overreaching.
And yes, MAGA Trump fans will still try to justify this, posting pictures of a couple of Waymos on fire, screaming about how LA is violent (it’s not) and needs “order” restored (again, even the cops say that’s nonsense). They all know that’s bullshit. Yes, your dumb uncle with a brain pickled by Fox News propaganda may believe some of it, but everyone who matters knows that this is all for show.
California’s lawsuit represents more than just pushback against Trump’s latest power grab. It’s a test of whether our constitutional system still has any teeth left when it comes to checking such extreme executive overreach. If Trump can get away with this—federalizing state National Guard units over the objections of governors for non-emergencies—then the balance of power between federal and state authority that’s existed since the founding is effectively dead.
As is the entirety of the American experiment.
That should terrify anyone who gives a damn about constitutional government and the concept of the United States of America, regardless of what they think about ICE or immigration protests.
Filed Under: california, donald trump, gavin newsom, karen bass, martial law, national guard, pete hegseth, state's rights
Comments on “California Sues Trump Over Unprecedented Federal Seizure Of State National Guard”
Commanding officers?
Why did the commanding officers of these troups of troops carry out these clearly illegal orders? That’s their single defence against tyranny (short of mutiny) – they can refuse to follow illegal orders.
Oh wait, they’re as inculcated in the ‘brown = subhuman’ cult as the next MAGA twat. (At least, that’s what the evidence shows so far)
Re:
Because while theoretically they have a right (and a duty) to refuse illegal orders, they don’t have the authority to decide whether a given order is illegal. This places anyone in the military in a bind: if they obey an order and it’s found to have been illegal they theoretically could be court-martialed but it’d take something as egregious as being ordered to rape civilians for that to happen, whereas if they refuse an order they’ll face a court-martial regardless and they can only hope JAG sides with them rather than the command structure.
The more likely thing is that they’ll obey orders in a way that avoids them having to face that “choice”. For example, if they’re ordered to stop a riot but all the crowd is doing is yelling insults the LT may go “Welp, don’t see a riot here so we sit on our hands until I do see one.”. He might get yelled at by his commander, but he won’t be court-martialed over it.
Re: Re:
Add to this that the Trump admin has gutted JAG, as they were an impediment to his lawlessness.
Re: Re:
They do, but it’s often an unrealistic thing to do. The commanding officers are not required to give them time off to study law, for example. And see what happened with Harold Hering, who “posed the following question during training at Vandenberg Air Force Base in late 1973, at a time when Richard Nixon was president: How can I know that an order I receive to launch my missiles came from a sane president?”
Nevertheless, Newsom should have named Defense Secretary Pete Hegseth, at least, in this lawsuit.
Re: Re: Re: Look at the embedded lawsuit
It’s on the first page of the embedded lawsuit. Hegseth is one of the named defendants.
Re: Re: Re:2
Thank you. Not being a lawyer, I don’t generally look through the court PDFs. And since Mike wrote “sued Donald Trump and the US government”, I figured that was the complete list of defendants.
Re: Re: What if a guard or marine fires of their own volition?
I’m more afraid of what happens then, given a guard has already actively aimed for and shot an Aussie reporter in the leg at damn near point-blank, well aware they were filmed doing it.
Or, I’ve just thought, if a ICE-planted cretin does, expecting to ignite exactly the firestorm the Fat wannabe-Fuhrer wants.
I’m neither military nor in the states so I’ve no idea how likely either actually is, but I sure as shit wouldn’t put it past them.
Re: Re: Re:
That particular scenario was a result of LA’s finest (police department), not NG. NG has higher expectations about discipline than your average PD. Police are just effectively local gangsters with badges and license to execute.
Re: Re: Re:
That was LAPD, and that dude should be charged with a crime. He watched her speaking to camera, had a word to the guy next to him, thought about it some more, aimed and fired. It was entirely intentional and unjustified.
Re: Re: nope
The state national guard is part of the military that the president has authority over.
Re: Re: Re:
Do learn to read, cretin.
Re: Re: Re: ack
Sorry typo. I meant to say the state national guard is NOT part of that military the president has authority over. They dont have to follow his orders any more than you or I do.
Re: Re: Re:2
Ah! Then I apologise, as well. Yeah, this decade is all sorts of way-too interesting for my taste.
Re: Re: Re:2
Yeah, i was like “what the heck?” i did not expect that from you.
Glad i caught it late after the corrrection.
Re: Re: Re:
No, they aren’t. That’s literally the problem here. Try to keep up.
Re: Re: 'I have examined my own orders and determined them to be legal, now get shooting.'
Because while theoretically they have a right (and a duty) to refuse illegal orders, they don’t have the authority to decide whether a given order is illegal.
I have but one word for that: Bullshit.
If those in the military have to get the okay to refuse an order from those above them their ‘right and duty’ to refuse illegal orders becomes completely moot, because who do you think is giving those orders?
Re: Re: Re:
That’s what we call a “catch-22”, a term named from a novel by the same name—based on “absurd bureaucratic constraints on soldiers in World War II”, according to Wikipedia.
The fact is, nobody in the U.S.A. knows “the law”. And even the laws that people think they know are interpreted differently, by courts, from the plain meaning. For example, “the right of the people to keep and bear arms, shall not be infringed”—but cops regularly do arrest people for having “unlicensed” firearms. The idea of needing a government license to exercise a specifically enumerated right seems odd. Could the same apply to speech? The courts say no; the right to speech must not depend on a government license; that would be absurd. But they do let the government arrest people for certain kinds of speech, such as death threats and lying to police (although the police are allowed to lie to the public), despite speech being a “right”.
How much jurisprudence is the average person—or soldier or government employee—expected to understand? I don’t know off the top of my head who has the stated authority to command a state’s “national” guard, let alone how the courts have interpreted it. I suppose it would be reasonable for the D.o.D. head to know, but I don’t think there’s any requirement for that; no “quiz of office” (although maybe there should be one).
We’re basically relying on blind luck for government employees to exercise their duty to refuse illegal orders. Like maybe some tax collector just happens to know that the Supreme Court has declared the tomato a vegetable, despite it being a fruit, and thus they can refuse to illegally collect a fruit tariff for tomatoes. I’ll be the hero of the people if I ever find myself in that situation!
Re: Re: Re:2
If cops don’t have to know the law, then those who possibly violate a law by refusing what they see as illegal orders, and maintaining the status quo, should be fine. Should. Of course this is hardly the norm.
Separately, fuck your career or whatever if you are ethically confused and weak enough to vacillate over whether something is wrong and illegal and unConstitutional, and ignore the suffering you inflict, and the domestic enemy you become. For your paycheck.
Re: Re: Re:3
If they follow the orders they view as possibly illegal, people on the internet will call them names… and that’s all. It’s extremely unlikely they’ll go to prison, and they’ll probably keep their job. Apart from World War II, there are very few examples of people getting into trouble for following orders. (Possibly the most realistic scenario is that European forces come to the USA to UN-Nazi it forever, and they’ll need some scapegoats.)
People who don’t follow such orders will likely be fired, and could be imprisoned. Really, the standard should be that they don’t do anything until they’re convinced it’s legal. This would be consistent with the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
Re: Re: Re:
I happened to watch Total Recall last night. The quote “don’t think—I don’t give you enough information to think” is as good a summary as any.
The people following orders do have the duty to decide whether each order is legal. But how? See the link about Harold Hering above. Hering had the theoretical duty to decide whether a President was sane, before launching missiles on that President’s orders. But nobody was required to provide Hering such information, Hering was fired for pointing it out, and the courts upheld that.
So, there are always the implicit additional questions: how sure am I that it’s illegal, how likely is punishment if I do follow the illegal order, and how willing am I to be fired?
Re: Re:
It’s an admittedly terrible position to be put in, but if things go really bad it won’t be a great defense. Ask the Nazis how “just following orders” worked out for them.
Re: Re:
Theoretically. If they all refuse, then the cost of said courts-martial would be too onerous for the US Military to pursue since they can’t try its members in groups.
Re: re: Officers
trump kicked out the officers who weren’t sufficiently maga for him; iow, they refused to sign their soul away in an NDA. He replaced (some) of them with magats who are sufficiently loyal (in his view) but who have no experience in either leadership or the military. Isn’t it funny how this whole administration is made up of Faux News pundits with no experience in either government or leadership. No wonder trump loves them. He’s already admitted he loves the magats – very stupid people, in his words.
Re:
Because like cops, most of our soldiers are murder and rape happy pedophiles.
Using the enemy’s legal system does not seem like it will be effective.
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Self Destruct
Gavin Newsome is paralyzed with incompetence, so Trump is doing his job for him.
Trump is a political genius. He knows that Democrats hate him so much that they will side with arsonists and pedophile gangsters instead of siding with him. This is why Democrat polling popularity is now at historic lows.
Re:
Who cares what rights they strip, so long as it polls good
Re:
Tell me, Koby: What are the Marines—a part of the American military that is trained to take on “enemy combatants” in “hostile areas”, often with lethal violence—supposed to be doing in the tiny sliver of Los Angeles that’s actually being affected by the protests, the handful of assholes instigating bullshit, and the subsequent police violence against the assholes, peaceful protestors, and even journalists who are only reporting on the news?
Are you really so eager to see American troops kill American citizens on American soil so you can claim victory in the name of the man who would be king and his fascist ideology? Are you really itching to become an American who kills other Americans?
Re: Re:
Moxon tells it.
Re: Re:
Koby does not say these things in good faith.
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Re: Re:
You are losing your grip on reality. Americans can see the video. They can see the rioters burning, looting, and throwing incendiary devices. “Fiery but mostly peaceful” means that your credibility is gone.
You seem to want to be viewed as a victim so badly. Sympathy is your only card left to play when logic and reason are gone.
Re: Re: Re:
Your inability to directly address anyone’s criticisms of you is telling.
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Re: Re: Re:2
Telling us something is telling without telling us what the tell is, is telling
Re: Re: Re:
Yeah, and? What do you even think you’re talking about?
I saw nothing worth the civil war Trump, Miller, and Hegseth are trying to ignite. Neither did the pigs of the LAPD, who can probably eat protests like this for breakfast.
So what did you see? Did you see something, anything, worth murdering the American experiment over? A car on fire is worth torching Constitutional order to you?
Just fucking admit you want a dictator daddy already.
Re: Re: Re:
Gaslighting from a propaganda repeater station.
You mean you watched your chosen conservative propaganda sources instead of all the social media posts showing so much more reality you must ignore to maintain your preferred, fascist-empowering narrative.
He’s not expecting you to experience emotions like sympathy or empathy. You sold your soul at the authoritarian store. You think humans should be treated as subhuman. You think it’s logical and reasonable to torture and murder people based on where they were born. You too far gone to become self-aware or grow a conscience anymore.
Re: Re: Re:2
The more people start understanding this, the sooner we can start actually addressing the problem.
Re: Re: Re:
And?
Do you approve of sending in the national guard and marines for every sports game?
Re: Re: Re:
Y’all kill and torture people and then expect us to take you seriously when your heart bleeds for property.
Fuck you.
Re: Re: Re:
Trumps on the Epstein list bro.
Re: Re: Re:
Pot, kettle, black.
And they can also see that the violence is (A) a small part of the otherwise largely peaceful protests against ICE/Trump, (B) affecting only a small part of Los Angeles, and (C) often instigated or exacerbated by the presence of the police and the National Guard. Oh, and they can also see the video of an LAPD officer intentionally aiming his weapon (and subsequently firing a rubber bullet) at a reporter who was merely doing her job, so there’s that, too.
Except that’s what the protests are. Assuming the agitators aren’t undercover cops—and that isn’t outside the realm of possibility—they’re not exactly large in number, and they’re not burning the entirety of Los Angeles to the ground like Trump claims. The protests and the violence springing out of those protests are limited to part of downtown LA, and the rest of the city is pretty much operating as usual.
None of this is to say I approve of the violence caused by the instigators or the damage to they’re doing to private property. Of course I don’t approve of that shit. But you might want to take a minute and ask yourself whether the cops are instigating violence, either in uniform or in deep cover, to give them an excuse to beat and maim and hurt “the enemy” they’ve been trained to fight.
No, I recognize that Trump is an American who wants to kill other Americans (and emboldens such Americans who hold similar desires) and act accordingly. If you think he doesn’t, maybe think about why he’s deploying the American military onto American soil to fight and possibly kill American citizens.
Re: Re:
Just a heads up, Koby doesn’t actually have any real arguments anymore and anything he says at this point is just trolling to rile people up – a sure sign that he knows he is wrong and instead of admitting that he decided to ride the stupid train all the way to La-La land by saying batshit crazy stuff totally divorced from reality.
This is Koby’s way of admitting defeat even if he doesn’t emotionally understand it because that would require a level of maturity he lacks.
Re: Re: Re:
Yeah. That’s how fascists “admit defeat.” He never actually had anything of substance to say. Every “point” he’s ever made has fallen apart under even the mildest scrutiny. What he is now is what he’s always been.
Re: Re:
Correction, only with lethal violence. What non-lethal means would the military even have access to and training with?
Re:
My father had a saying for scum like you, Koby: “It’s your lie – make it as big as you want!”
Re:
Pedophile gangsters? You mean the January 6 insurrectionists?
Re: Re:
No. He means Trump and Company. No shortage of media showing Trump partying with both Epstein and Diddy.
Re:
Trump is just replaying the 90s collapse of Russia into a naked mafia state.
Re:
Oh look. Koby’s telling lies in support of fascism. It must be another day.
Re:
I like fish.
Re:
Fucking liar.
Re: Let's see...
Not the barest hwhiff of truth: ✓
Wanking for an actually orange (seriously, what in the everloving fuck?) billionaire wannabe-Führer to his own eventual detriment: ✓
Said wankage achieved through powerfully inept trolling: ✓
Credibility lowered still further as a result: ✓
Classic Koby. You are consistent as fuck man, I will give you that.
Re:
Yes. Democrat popularity is at a low for them siding with republicans.
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Theyre_the_same_picture.png
Re:
Koby, even if we went with your ridiculous framing that this is all about politics (which suggests you are amoral and have no problem with destroying lives to achieve political goals which… fuck you), you’re simply wrong.
These actions are widely hated by the public:
https://today.yougov.com/topics/politics/survey-results/daily/2025/06/10/50147/4
https://today.yougov.com/topics/travel/survey-results/daily/2025/06/10/50147/3
https://today.yougov.com/topics/politics/survey-results/daily/2025/06/10/50147/1
Re: Re:
He’s just going to shift the goalposts again if he responds at all, because fascists play stupid word games rather than engaging in good faith.
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Re: Re:
Update: big majority of voters approve of Trump’s sending in the guard, 58% to 39%.
National poll of likely voters
https://www.breitbart.com/politics/2025/06/10/poll-majority-approve-trump-deploying-national-guard-to-quell-los-angeles-riots/
Re: Re: Re:
What’s Breitbart’s polling methodology, btw?
Where and how did they get those numbers, Koby?
I could look for myself, but I want YOU to.
I want you to do the proper thing and look at these kinds of details; to ask these kinds of questions of your sources.
Because something tells me you might never have bothered to do so before.
Re: Re: Re:2
I am sure that you did the same for the link Mike posted 3 times(for some reason).
Re: Re: Re:3
Good to know you’re as stupid as your posting history suggests. Those are three different links. But now we know you don’t bother reading the homework, which is pretty obvious from what you say when you do post.
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Re: Re: Re:4
If I am so stupid, why are you moderating all of my posts? Are you afraid of my stupid logic making sense?
Sorry, I made a mistake. I guess that is reason enough to attack me though. 6/19 5:50pm est.
Re: Re: Re:
Koby the troll is here lying again. 38% isn’t a big majority unless you are too stupid to understand what words mean. The number corresponds quite well to the republican voters who can’t tell lies from truth.
Re: Re: Re:
LMAO at citing Breitbart for anything
🤣
Re: Re: Re:
Like fucking Breibart, a literal conservative propaganda site, would ever say anything against dear leader. Find an actual, credible poll and we can talk.
Re: Re: Re:
The poll you cited is from Insider Advantage, once described as the least accurate polling firm in America:
https://fivethirtyeight.com/features/pollster-scorecard-insideradvantage-be/
“Of the 63 firms to have released at least 10 polls into the public domain, they rank 62nd — next to last — in my pollster ratings.”
Meanwhile, YouGov, who is widely respected, released numbers that show almost the exact opposite of what the numbers you present shows:
https://www.axios.com/2025/06/10/los-angeles-protest-national-guard-marine-trump-polling-disapprove-yougov
Lies, damned lies, and Koby.
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Re: Re:
Update #2: Gavin Newsom loses round 1.
https://www.breitbart.com/politics/2025/06/10/federal-judge-denies-newsoms-lawsuit-ordering-trump-to-withdraw-national-guard/
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Lie #2, the federal judge didn’t deny anything, he just gave the administration until tomorrow to submit their arguments in response.
Just give up Koby, you have become too stupid to make any kind of valid argument so you have become addicted to lies.
Re: Re: Re:2
Koby’s emotional support reality is going to fall apart when Trump orders the military to kill people on American soil.
I hope he cracks from it. The complete psychological breakdown will be glorious if he has it here. 🍿
Re: Re: Re:
It’s telling you couldn’t find a single factual source to back up your gaslighting.
Re: Shove it up your ass
Oh look Kory the Quisling has an opinion.
Re: Re:
No, he doesn’t; he just repeats the opinions he gets from his favourite right-wing media.
Re:
How and why are you this stupid, Koby? Are you seriously so short sighted in your hatred of anything to the left of Hitler that you’re willing to let Trump piss away the constitution while you spin lies to defend it?
Re:
Good god what an unoriginal person you are repeating shit and not saying anything that is new or original. You’re just an echo, you’re not even a real person.
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FTFY. YW. 😜
This is THE red line.
What exactly is stopping the governor from issuing a countermanding set of orders?
A new generation of troops who were 'Just following orders'
Just as if not more chilling than an already dictatorial regime using the military to clamp down on protests and set the precedent of doing so is the fact that the military went along with it.
Either no-one in the california national guard has any idea that maybe the president manufacturing a ‘crisis’ and using that to federalize the state military over the objections of the state governor and sick them on protesting civilians was illegal(possible but highly unlikely) or the grunts and officers knew damn well that what they were doing was over the line and did it anyway(much more likely).
Congrats to the US military for yet again failing the most important test of their careers and deciding that cowardice and/or complicity is more important to them than courage and integrity.
Re:
Suckers and losers, they are!
Goes both ways?
If Trump can improperly issue a command to deploy National Guard, why can’t a governor make a similarly illegal command for the National Guard to stand down?
If the order has to come from the Governor, aren’t the National Guard commanders violating the chain of command?
They took an oath.
If they deploy, the will have violated their oath and military law.
Re:
The difference is that by my understanding if the governor gave them that order unlike the one the regime gave it wouldn’t be illegal because the national guard of a given state are under the command of their respective governor.
Unfortunately, it seems MSNBC is concerned it won't succeed
https://www.msnbc.com/opinion/msnbc-opinion/la-protests-trump-california-lawsuit-rcna211858
“…The difficulty facing California’s lawsuit is that federal law appears to give not just President Trump, but any president, broad authority to federalize the National Guard, whether or not a governor wants him to do so.”
“California has argued that there is no such rebellion. One problem for the state’s lawsuit is that there is of course no settled definition of what a rebellion is. In addition, federal judges tend to defer to presidents when it comes to questions of national security. Federal judges, who are not chosen by voters, are generally wary of second-guessing the judgment of an elected president when it comes to questions of whether or not we are in danger of a rebellion.”
“California also argues that because Section 12406 requires that orders to federalize the National Guard be issued “through the governors,” that means that a president cannot take this action against the wishes of the state’s governor. However, the plain language of the statute does not include an explicit requirement of a governor’s consent. In addition, reading such a requirement into the statute would provide any state governor with veto power over a president’s decision under this federal law. That hardly seems consistent with congressional intent.”
“Finally, California argues that Trump’s actions violate the 10th Amendment, which says that all powers not given to the federal government are reserved for the states and the people. But the plain terms of Section 12406 do appear to give the president the power to federalize the National Guard.”
But, they do admit the legal landscape would change if he used the insurrection act.
“The legal landscape would change significantly if the president tries to invoke his power under the Insurrection Act. If he does, the protections in the Posse Comitatus Act are suspended, and the National Guard, and other branches of the military, can act to directly enforce domestic law. We are not there yet, but if Trump takes that step, it would be a dramatic escalation of an already historic standoff between the federal government and the state.“
Re: theoretically, but actually
If the law says only in case of rebellion and the president has NOT declared the city to be in rebellion, then it isnt a debatable point. Its legally not in rebellion. You cant say only the president has the power to decide that. He hasnt, so it isnt.
Re: Re:
This does not follow. A law that can only be used in case of rebellion might not require any declaration of rebellion, and this one doesn’t. Here’s the law; it’s just a few sentences, and you can read it yourself.
Besides the aforementioned logical flaw, you might note that:
– “danger of rebellion” (or danger of invasion) is just as applicable as “rebellion” (or invasion)
– the terms are not defined here (that I can see; if you find definitions, please post them)
– factually, many states are rebelling against Federal policies (though not “authority” till the courts say the Feds have the authority they’re claiming to)
– no declaration or justification of anything is required (okay, the courts are gonna ask now that Trump’s being sued, but the lawyers have some time to spin a story)
(By contrast, it recently came up in BestNetTech discussion that the IEEPA, the law being used for tariffs, does require a “declaration of emergency”. Still, that’s all; it doesn’t define the term or require this declaration to explain anything.)
Also, there’s an entire third clause you’re overlooking:
“Whenever— (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 […] 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.”
“Through the governors” is an interesting clause, given the lack of any explicit requirement for those governors to pass along the orders. We’ll see whether the courts infer an implicit requirement there, and whether they’ll let the President go over a governor’s head if the governor won’t give the orders.
I’m guessing that the writers of that text assumed, like you, that any reasonable President would make appropriate declarations and explain them. Too bad they forgot to write it, and we don’t have a reasonable President.
The fact that this is all coming down to a lawsuit feels like an indication that the American Experiment is already dead and has been for a while.
Re:
Enough of the Eeyore-ing, stop with the doom and gloom and give the system a chance to react and rectify. The courts have been doing their jobs, albeit slower than most of us would like of course, but sitting on the sidelines lamenting nothing is happening and the other side is winning is ignorant, childish and just plain fucking wrong.
Re: Re:
We have spineless judges like Xinis and more unwilling to issue contempt charges and real-ass consequences for government officials blatantly acting in contempt. Stop with the “courts move slow, but don’t worry, they will save us!” horseshit.
The president of the U.S. has about as much authority to commandeer the National Guard as does the President of Mexico.
Miller’s one regret is not being German the 1930s. He’d have loved being in power then too.
Re:
He’d have been taken to the gas chambers since he’s jewish. Of course he’s a weasel as well, so probably would have been a collaborator with the Nazis and sold out his family and community, and at the end he’d have been shot, hanged or forced to walk the street as a collaborator while being pelted with shit and stuff. The last one may yet still happen, one can hope at least.