Los Angeles, California: Protests against the U.S. National Guard in the light of the “Possible Insurrection” Memorandum

Mirasola said that he is worried that the political pressure will get to move beyond what is included in the protective power.

In fact, the memorandum also says, “The Secretary of Defense shall consult with the Attorney General and the Secretary of Homeland Security prior to withdrawing any personnel from any location to which they are sent.”

And that may happen given, in Mirasola’s view, the presidential memorandum is extremely broad and, on its face, doesn’t appear limited to LA. In fact, “Los Angeles” is not explicitly stated in the memo’s text and the secretary of defense is given wide latitude to issue military protective activities.

“If we see the National Guard moving meaningfully beyond this more limited role, then we are certainly seeing an overstepping of the legal theory that’s really at the foundation of the deployment in LA,” Mirasola warned.

“If the court tries to put constraints on what [Trump] can do under these authorities, I would fully expect that then his next step would be to invoke the Insurrection Act,” Goitein said.

“The courts have not had the opportunity to resolve whether, under this theory, the military can perform these fundamental law enforcement functions that we’re talking about in a situation like what’s unfolding in Los Angeles,” she said.

The Posse Comitatus Act, which is supposed to stop federal participation in law enforcement, simply doesn’t apply because the Justice Department opined that the military is not actually conducting law enforcement when protecting federal functions and property.

During Trump’s first administration, Goitein said this idea was put up by the executive branch for many decades.

The state of California will be joining a lawsuit against the president’s decision. The lawsuit accuses the National Guard order of violating the U.S. constitution and exceeds the president’s authority, according to the statement.

Immigration and Customs Enforcement launched several operations in Los Angeles over the course of a week and a half. In response to the raids, people demonstrated and organized protests, clashing with police in the city and surrounding areas. During the clashes, law enforcement met protesters with pepper spray, tear gas and rubber bullets.

The First President of the U.S. Armed Services to Respond to Civil Unrest without a Governor’s Appropriate Request for Assistance

It is the first time since 1965 that a president called National Guard troops to respond to civil unrest without a governor’s official request for assistance, according to Elizabeth Goitein, the senior director of the Brennan Center’s Liberty and National Security Program.

Additionally, on Monday, a defense official confirmed to NPR that 700 Marines based out of Twentynine Palms, Calif., have been mobilized for LA and are expected to operate in a “support role” and perform the same duties as the National Guard.

The Insurrection Act gives the president power to use federal troops to quell civil unrest during a crisis, according to Goitein. The Insurrection Act, which predates the development of modern state and local police departments, allows federal troops to engage in law enforcement activities, like searches, seizures and arrests.

The act has yet to be invoked by the White House in Los Angeles, despite the fact that the protesters have been referred to as “insurrectionists.” Trump said that he didn’t see the basis for the Insurrection Act, however he did leave the possibility of doing that in the future.

“It hasn’t been used since 1992 and it hasn’t been used without a state request,” she said. The President used it in order to calm the Los Angeles riots after a jury acquitted the police officers involved in the Rodney King beating.

Title10 of the U.S. Code on armed services has a provision called 10 U.S.C. 12406. The president is able to deploy federal troops in times of a rebellion against the U.S. government.

Newsom’s office said the president exceeded his “Title 10 authority, not only because the takeover occurred without the consent or input of the Governor, as federal law requires, but also because it was unwarranted.”

Steve Vladeck, a Georgetown law professor, wrote on his substack that this provision does not authorize the National Guard troops to conduct their own immigration raids, arrests, or do anything else than what the president stated in his memo.

The president is also justifying calling the military to LA by seemingly pointing to an implied authority in Article 2 of the Constitution, according to Christopher Mirasola, an assistant professor at the University of Houston Law Center.

The protective power is a debated theory of presidential power, and it says the president has the authority in the military to protect federal functions, properties and persons.

It wasMichel Martin. So given your role in Armed Services, and you’re also a lawyer by training, do you believe the president is acting legally in calling up active duty military?

I do not. He has the power to use troops in this way, but only if there is a risk of a rebellion. And that is certainly not the case here. He is broadening the emergency authority that was meant for very narrow, specific circumstances and just being able to do so has been done in many areas. I think the courts would strike down this authority if the court case got there. President Trump isn’t very interested in following the law.

“President Trump wants this confrontation partially because he wants to emphasize the issue of immigration enforcement,” Smith told Morning Edition. I worry that he wants to use the U.S military as a law enforcement tool, which is incredibly dangerous.

Martin: I can imagine that it is somewhat galling to someone like yourself who was trapped on Capitol Hill during the January 6th mob attack on the Capitol, when President Trump took many hours to condemn the violence or call for reinforcements for the law enforcement officers who are trying to hold the Capitol and protect people like yourself then. The scenes in L.A. were described by John Fetterman, your Democratic senator, as an anarchy and true chaos. And he said that Democrats lose the moral high ground when members refuse to condemn the violence from protesters. What do you say to that?

Smith: First of all, absolutely. On January 6th, we had an insurrection at the Capitol. People were trying to stop the president from being elected. They were threatening to kill a number of officials. The president decided to ignore the actual insurrection. And to this day, he has pardoned all of the people involved and downplayed that event. That is completely out of line.

Top Democrat on the House Armed Services Committee Adam Smith said he fears President Trump wants to use the U.S. military as his “personal police force.”