The National Guard Deploys to Los Angeles to support ICE Officers – When can the President send in the Guard?

President Trump has ordered 2,000 California National Guard troops to Los Angeles.  While some believe that this exceeds his Presidential Power under the Constitution, this is simply not correct.  While the National Guard, under this Presidential order cannot engage in ordinary law enforcement activities, they can protect Immigration and Customs Enforcement (ICE) officers as they attempt to enforce federal laws.  These Soldiers can only, however, perform law enforcement work if President Trump invokes the Insurrection Act. 

Prior Presidents have invoked the Insurrection Act in the past.  President Dwight Eisenhower deployed the 101st Airborne to Arkansas, to protect students integrating a high school when that state’s governor activated the National Guard to keep the students out.  President Bush used the Act to address the riots in Los Angeles in 1992 after the acquittal of police officers in the Rodney King.

While the National Guard was mobilized during President Trump’s first term, State Governors agreed and ordered the troops in their states.  While Governor Newsom in situation does not agree with President Trump’s, order he cannot stop it.  While Newsom is the Commander in Chief of California’s National Guard, President Trump’s nevertheless has the authority to use these troops in the current manner in which they are deployed.  Trump’s order does not violate the Posse Comitatus Act.

The Posse Comitatus Act

The Posse Comitatus Act prohibits federal troops from participating in civilian law enforcement. This law incorporates an American principle that sees military interference in civilian affairs as a threat to both democracy and personal liberty.  While this Act applies to the Army, it only applies to National Guard if they are mobilized under Presidential Order.  Members of the National Guard, however, are rarely covered by the Posse Comitatus Act because they usually report to their state or territory’s governor. 

Here, the President’s Executive Order is specific and focused on protecting ICE officers from harm.  Since it does not order these troops to act as law enforcement, it is unlikely that a Court will find it unconstitutional.  While California’s governor has stated that this deployment is not necessary, this is not an argument based on any constitutional principle.  

What is the National Guard? 

The National Guard is a special part of the United States military which answers both to State Governors and the President of the United States.  It is a different force than the Army.  Historically the Guard was originally designed to serve as a reserve for military operations, but over the years it has been called in to address domestic crisis as well as overseas conflicts.

While the National Guard are not active-duty Soldiers, they are nevertheless a highly trained equipped military fighting force which often serves side by side with active-duty military personnel. 

Compared to even a large city police department, the National Guard has more resources, firepower, and access to better training.    Governors and the President have called upon the Guard to address natural disasters, riots, and border security. The Guard has also been deployed to places such as Afghanistan and Iraq as well as various overseas locations.

The National Guard’s duties typically include the following:

• Disaster Relief– The Guard is frequently called to respond to Statewide emergencies such as natural disasters.
• Military Support– Since 9/11 the National Guard has deployed to Iraq, Afghanistan, as well as to collect and analyze intelligence related to the war in the Ukraine. The Guard has also assisted in training members of the Ukraine Armed Forces.
• Law Enforcement– The National Guard can be deployed by State Governors for law enforcement purposes. Governors have deployed the National Guard to respond to protest, riots, and other temporary times of civil unrest.

Here, President Trump is not using the National Guard for any of these functions but his power does allow him to use the Guard when the President is unable to “execute the laws of the United States,” with regular forces.  Since the President is using the Guard to protect ICE officer’s from harm, executing federal immigration law, it is unlikely that any Court will find it unconstitutional.