What happened in LA and what does the law say about it?
This is not about just taking sides
Last week, Trump sent 4,000 National Guard troops and 700 US Marines to California to crack down on protests against his ICE raids.
Recall that in 2020, Black Lives Matter protests spread across the country following the murder of George Floyd, a Black man, by a Minneapolis police officer. Trump called the protesters “THUGS" and, according to his former defense secretary Mark Esper, recommended they be shot. A report from a nonprofit organization that “tracks global political protest and violence” found that “of the more than 7,750 Black Lives Matter demonstrations held across the country in the last several months, 93 percent have been peaceful.” (emphasis added).
Whether the president has the power to carry out aggressive ICE raids through the National Guard and US Marines depends on extremely broadly worded statutes that were enacted decades ago. His actions also push against the First Amendment and the Tenth Amendment, which reserves the police power to the states.
Pundits are pounding the table on both sides of the argument, emphasizing broad presidential power on one hand and the rights of protestors and governors on the other.
A District Court judge ruled in favor of California and issued an injunction. That decision was criticized from some legal analysis for giving insufficient deference to the president. The judge’s decision was stayed by the U.S. Court of Appeals for the Ninth Circuit, which had a hearing this week. People who heard the oral argument in the Ninth Circuit predict that at the appeals court will likely reverse the lower court judge.
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Did the protests get violent before Trump invoked the National Guard and the Marines?
There has been a great deal of confusion surrounding the protests that took place in California.
Heather Mac Donald wrote in City Journal, for example, that Trump’s actions were needed “to protect federal officers and property” from “L.A.’s illegal-alien riots.”
Meanwhile, according to sworn affidavits filed in the lower court, “‘[t]he presence of the National Guard seemed to only inflame the protests further.’”
The Los Angeles County District Attorney told NBC Los Angeles that "‘[a]bout 99.99 percent of the people who protested did so lawfully’” and that the people who were arrested for criminal activity “took advantage of the protests to commit crimes.” Bill Essayil, U.S. Attorney for the Central District of California, “said many of the people under arrest were not from the Los Angeles area.”
In my recent column for Zeteo, I emphasized that it is extremely important that we not only get the facts right about what happened in California, but also that we get the law right on whether or not Trump had the power to send military forces to a state without the governor’s knowledge or approval. If Trump can deploy the military all over the country whenever he wants to shut down protests against him or his policies, we will have possibly reached the point of no return to democracy.
What did Governor Newsom argue in court?
According to the lawsuit filed by California’s governor, Gavin Newsom, against the Trump administration, Immigration and Customs Enforcement (ICE) agents began searching, detaining, and arresting individuals “at multiple locations within Los Angeles County and the City of Los Angeles” on Friday, June 6th. The complaint states that, according to “statements from the Department of Homeland Security,” the operations took place at various locations including "a clothing wholesaler,” “a doughnut shop,” and “two Home Depot stores.”
The complaint notes that “[p]rior to the ICE operations, federal officials did not provide the leadership of the Los Angeles Sheriff’s Department (LASD) or Los Angeles Police Department (LAPD) with any notice as to the planned operations or otherwise attempt to coordinate activities to protect the safety of the public.”
It further states that a lot of the actions from ICE “inflamed tensions and provoked protest” because of the “military-style operations” that ICE agents were initiating. These “enforcement activities” led to “the arrest of approximately 44 individuals and 70-80 people detained in total.”
In the afternoon on Friday, groups of people began to form in the areas where ICE agents were detaining and arresting individuals. Hours later, protesters began to assemble outside the Edward R. Roybal Federal Building and U.S. Courthouse in downtown Los Angeles out of opposition to and concern for the immigration policies the Trump Administration has ordered.
California asserts that none of these protests ever amounted to “a rebellion or an insurrection.” In fact, they had not “risen to the level of protests or riots that Los Angeles and other major cities have seen in the past,” including ones that broke out after Rodney King was brutally beaten by officers, and caused the National Guard to be “federalized for riot control” after there were “multiple shootouts, over sixty deaths, thousands of people injured, and more than 12,000 arrests.”1
After the protesters had formed outside the courthouse downtown, the LAPD announced it had become “an unlawful assembly” and called for people to leave. Shortly after, the group shrank.
These protests continued during the next day, June 7th, and took place in different locations around the City and County of Los Angeles. There were reports that the federal government would trigger the National Guard, and Gov. Newsom vehemently expressed his disapproval of this happening, saying it would only make matters worse. Later that day, Trump put out a memorandum declaring that “protests or acts of violence [that] directly inhibit the execution of the laws” amount to “rebellion against the authority of the Government of the United States.”
Pete Hegseth, the Secretary of Defense, then notified the individual in charge of the California National Guard that 2,000 members would be deployed for 60 days. The troops began to arrive on the morning of June 8th. A day later, another 2,000 members were called into service, and Marines were deployed to LA as well.
What has happened since then?
Gov. Newsom filed the lawsuit on the 9th and alleged that the Trump Administration had violated several federal statutes and the Constitution by deploying the National Guard without Newsom’s knowledge or consent. The lawsuit sought, among other relief, an injunction from the court that would prohibit the Administration from “federalizing and deploying the California National Guard” unless they do so under the guidance of federal law.
Three days later, U.S. District Judge Charles R. Breyer (brother of retired Supreme Court Justice Stephen Breyer) granted the temporary restraining order in a 36-page opinion.
The Trump Administration appealed the order to the US Court of Appeals for the Ninth Circuit. A three-judge panel from the Ninth Circuit held a hearing on Tuesday. The panel was comprised of two Trump appointees—Judge Mark Bennett and Judge Eric Miller—along with Judge Jennifer Sung, who was appointed by President Biden.
Judge Bennett appeared to believe that the lower court’s injunction might interfere with the president’s power to act in an emergency.
Joyce Vance, in a recent column for her newsletter Civil Discourse with Joyce Vance, explained that the government was “arguing that a president is entitled to federalize the [National] Guard, even if they provide no reasons at all.” Meanwhile, the attorney for California, Sam Harbourt, told the judges that the president lacks the discretion to federalize the National Guard until conditions are met under federal law.
Joyce correctly noted that the government’s argument is “moving beyond the unitary executive to a still more maximalist view of an imperial presidency that can elude review by the judicial branch.”
What does the law say?
Before we dive any further into what the Ninth Circuit said on Tuesday, let’s go over the law at play here.
Federal Law
California argues that the federal government has violated the Posse Comitatus Act. This was enacted in 1878, following the end of the Civil War. It was intended to ban the mobilization of federal troops against civilians out of fear they would be used to re-install white-supremacy in the post-Confederate South.
The law states: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
In other words, the moment the military starts to detain citizens, the law has been broken—unless an exception applies, such as the Insurrection Act, which was not at issue in this case because Trump did not attempt to invoke it.
In response, the Trump Administration argues they did not engage in true law enforcement, but rather provided “supportive activities.”
The case is about the Militia Act of 1903, which led to Title 10 US Code 12406. Congress gave the President the ability to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary.” The National Guard answers to the state governors; however, the President may call them into service under federal law for three reasons:
The United States is being invaded or is at danger of being invaded;
“there is a rebellion or danger of a rebellion against the authority of the Government of the United States;” or
“the President is unable with the regular forces to execute the laws of the United States.”
Trump argues that what happened in LA amounted to a “rebellion” and made it impossible for him to otherwise execute the laws. But the sworn affidavits make it nearly impossible for the incident to be described as a rebellion.
The affidavits state “[t]he National Guard troops arrived in Los Angeles on June 8, but ‘it was not clear what role they were to play or what orders they were provided,’ and ‘there were concerns’ that they ‘did not have the equipment or training necessary to handle the situation.’ Initially, that morning, the city was quiet.”
In Judge Breyer’s opinion, he construed rebellion meant open, avowed, armed, violent, and directed to the government as a whole, not just a single issue such as immigration. The Ninth Circuit might disagree on this definition, on the grounds that it sets too high a bar for the president.
Breyer further concluded that “[e]ven accepting the questionable premise that people armed with fireworks, rocks, mangoes, concrete, chairs, or bottles of liquid are ‘armed’ in a 1903 sense—the Court is aware of no evidence in the record of actual firearms—there is little evidence of whether the violent protesters’ actions were ‘open or avowed.’”
At the hearing, Judge Miller on the Ninth Circuit asked that, absent violence, if Trump believed he needed extra support to carry out his deportation efforts, would that constitute a situation where he was “unable…to execute the laws” under the statute. The Trump Administration responded that this would satisfy the federal standard and went even further to say that, should the president do this in every state, it still would not be subject to review. This is a truly frightening scenario to imagine. Should courts buy this view, the president’s power would be expanded yet again, as Joyce Vance noted.
The Constitution
Turning to the Constitution, common sense suggests that Trump’s attacks on protesters are a direct attack on the First Amendment’s right to free speech and to assemble freely. Judge Breyer wrote that the Constitution prohibits the president from authorizing the government to punish people for protesting just because they might become violent. Breyer cited numerous Supreme Court cases and wrote: “Any word spoken … that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.” Thus, “constitutional rights may not be denied simply because of hostility to their assertion or exercise.”
Breyer then turned to the Tenth Amendment, which protects state sovereignty from an oppressive government. Specifically, Breyer explained that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws. Quite the contrary, the founders reserved that power, and others, to the states in the Tenth Amendment.”
Supreme Court precedent
The third potentially applicable law comes from judicial precedent that the Ninth Circuit considered. There is a Supreme Court case, Martvin v. Mott, which dates back to 1827. Essentially, the case arose in light of the War of 1812 when President James Madison invoked the Militia Act of 1795, which said the “President has authority to call forth the militia, ‘to execute the laws of the union, suppress insurrections, and repel invasions.’” That statute is not the same law at issue in the case involving Trump, but the Trump Administration is arguing that it is close enough that it should be binding precedent for other laws involving the federal government’s use of the National Guard or military troops in civilian spaces.
Mott was brought to court and fined after he refused to obey the president’s orders and serve in the military during the War of 1812. Mott believed that he should be allowed to determine whether he felt the country was at risk of being invaded before joining the troops. The Supreme Court held that the assessment of whether the country needed “the militia ‘to execute the laws of the union, suppress insurrections, and repel invasions’” is reserved “exclusively vested in the President, and his decision is conclusive upon all other persons.”
The Hill reported that California argued to the Ninth Circuit that the current case was far different from Mott, which involved a single militia member pushing back against the president rather than the State and Governor of California. At the hearing, Judge Sung reportedly responded that “’the problem that I see for you [California] is that Mott seem to be dealing with very similar phrasing about whenever there is an invasion, then the President has discretion, and it seemingly rejected the exact argument that you’re making.’”
California also argued that Mott does not align with today’s respect for state police powers and was decided before the Posse Comitatus Act was enacted.
What’s the takeaway?
This case certainly has the possibility of making it to the Supreme Court. The high court could go either way, while they have a pattern of expanding presidential powers in the name of Trump, conservatives typically prioritize protecting state rights.
The Supreme Court is also likely to restrain so-called “universal injunctions” that allow judges from one jurisdiction to issue rulings that apply to all other jurisdictions across the country. In that case, the injunctions sought to stop Trump from deleting birthright citizenship from the Fourteenth Amendment. Of course, this would end up helping Trump in the short term, as we are seeing lots of lower federal courts issue them in an attempt to put a stop to his unconstitutional actions. This is important because even if the Ninth Circuit were to uphold Judge Breyer’s injunction, it would only apply to states subject to the jurisdiction of the Ninth Circuit.
In the meantime, Congress could amend these absurdly broad laws to rein in Trump’s worst instincts. Votes matter.
Follow the facts,
KW
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This has been edited from the original post that misstated Rodney King died. The riots arose after he was brutally beaten, not killed.
Tangential to the main points of this very good summary: Rodney King wasn't killed in the 1991 beating by police officers, though he was seriously injured. He died in 2012.
This is such a necessary review. Thank you, Ms Wehle, for this comprehensive assessment.
The extreme views that Americans offer as context for this set of 'immigration law enforcement actions', as a local pro-Trump resident called the federal government actions in LA, are in stark contrast to the view shared by members of the immigrant communities in America, of many minority group Americans, and many other Americans. A central issue among these differing views is equal protection of the laws and actual respecting of these lawful protections, e.g., but not limited to due process.
Also in regard to polarized views here is the fact of the Trump Administration's blatant and wanton abuse of Executive authority and its encroachments on and erosion of authority of the other branches. There is some agreement on the absence of good faith adherence to oath of office and absence of unqualified respect for the Constitution by this Trump Administration and many of its supporters, adjunct groups, and camp followers.
This very helpful assessment brings up lots of practical questions.
One is the changes in the understood role of state militia in the security of civil society and governance. An interesting insight is Federalist Paper No. 29. Concerning the Militia
From the New York Packet. Wednesday, January 9, 1788, HAMILTON, To the People of the State of New York.
Another is, again, a view from the Preamble of the Constitution. By what means and under what public scrutiny and effective accountability is the Constitution, constitutional civil society and governance, and effective political order and civil liberty protected if and when it appears that an entity presents itself to effectively over power, to under cut, to remove Constitution, constitutional protections and institutions?
How do the DHS and ICE actions, along with federalization of the Guard and calling in units of the military actually constitutionally get along with our necessary effective retention self-government agency?