Key Points – President Trump’s recent deployment of 2,000 federalized National Guard troops to Los Angeles over the objections of California’s governor to quell immigration protests raises significant legal questions.
-While Trump has labeled the protests an “insurrection,” he has not formally invoked the Insurrection Act.
-According to legal analysis by scholar Steve Vladeck, the deployment is a “dangerous” step but likely does not yet violate the Posse Comitatus Act, as the troops are tasked only with protecting federal agents and property, not general law enforcement.
-However, the action establishes a concerning precedent and risks escalating the conflict, especially with threats to deploy active-duty Marines.
The Posse Comitatus Act vs. Trump’s LA Troop Deployment
The Trump Administration this week deployed National Guard troops to Southern California to help quell protests against the administration’s immigration crackdowns in Los Angeles.
California Gov. Gavin Newsom and Los Angeles Mayor Karen Bass have both said that they have the protests under control and that the National Guard troops are not needed. The governor, who traditionally has the power to call in the National Guard, has said that they were sent in over his objections.
Was it legal for Trump to send troops over the governor’s objections?
A Constitutional Question
Trump ordered the deployment of 2,000 National Guard troops to Los Angeles on Saturday night. Per the New York Times, while Trump has “long mused about” sending military troops on U.S. soil to “crush violent protests or riots, fight crime and hunt for undocumented migrants,” he was talked out of doing so during his first term, including during the unrest following the killing of George Floyd, just over five years ago.
Trump also talked, at the time, about invoking the Insurrection Act to put down the Floyd protests, although he never did. He did, however, refer to the California protests as an “insurrection” in comments over the weekend.
When the National Guard was deployed in the summer of 2020, it was on the orders of state governors. But Trump, while running for president, vowed that he would do so without requiring the orders of governors. The troops are under federal control, rather than under the orders of state governors, which is what typically has happened in such instances in the past.
Trump’s order, the Times said, also authorized Secretary of Defense Pete Hegseth to “use troops to protect immigration enforcement agents, buildings and functions from interference by protesters.” It does not, however, give them the right to arrest or otherwise use force against protesters.
Hegseth has threatened to deploy active-duty Marines, possibly from Camp Pendleton, to deal with the protests in Los Angeles, which would certainly cross a line that has rarely been breached in recent American history.
“The [Department of Defense] is mobilizing the National Guard IMMEDIATELY to support federal law enforcement in Los Angeles,” Hegseth said in an X post this week. “And, if violence continues, active duty Marines at Camp Pendleton will also be mobilized — they are on high alert.”
Is this legal? Like a lot of Trump Administration actions that go up against established norms, and the answer to that question is “maybe” and “that will probably be resolved in the courts at some point.”
“A Tentative Step”
In a Substack post this week, Steve Vladeck, a legal scholar, calle the deployments “ a tentative step toward abusing authorities for domestic use of the military, but a dangerous one.”
The move, Vladeck said, “is a big deal—but why it also is not as drastic an escalation (or abuse) as many had feared, at least not yet.”
For the 2,000 National Guard troops to engage in “ordinary law enforcement activities” would violate the Posse Comitatus Act, the law from the 19th century that bars the military from nearly all civilian law enforcement activity. One exception to that is the Insurrection Act, which has not been invoked since another example of civil unrest in Los Angeles, the post-Rodney King riots, in 1992.
“There’s nothing these troops will be allowed to do that, for example, the ICE officers against whom these protests have been directed could not do themselves,” the attorney’s post says. “And because of the Posse Comitatus Act, the reverse is not true; there is plenty that these troops cannot legally do that the ICE officers can (once they are federalized, National Guard troops become functionally indistinguishable from federal regulars for purposes of the Posse Comitatus Act).”
There are, however, still reasons why the order is“alarming,” per Vladeck. There is still a risk of escalating violence, it could be a precursor to invoking the Insurrection Act, and the possibility of “corrosive effects.”
About the Author:
Stephen Silver is an award-winning journalist, essayist and film critic, and contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. For over a decade, Stephen has authored thousands of articles that focus on politics, technology, and the economy. Follow him on X (formerly Twitter) at @StephenSilver, and subscribe to his Substack newsletter.
