Why Trump Sent the National Guard to L.A.

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What’s been happening in Los Angeles over the past few days started with a number. A quota, to be precise.

Toward the end of May, President Donald Trump’s aide Stephen Miller came to immigration officials with a demand: He wanted them to triple the number of immigrants they arrested each day. Meeting this request would mean detaining 3,000 people every 24 hours.

Since then, there has been resistance across the country. And this past weekend in L.A., Immigration and Customs Enforcement got pushback when agents showed up at a local restaurant and a clothing store. Things got especially heated in a Home Depot parking lot.

The raids that happened on Friday prompted protests and some tense standoffs. But the real showdown happened in Paramount, a city of 56,000 people to the south of L.A. There, a growing crowd of protesters became “increasingly agitated” on Saturday, according to the L.A. County sheriff’s office. In the end, protesters were pushed back by law enforcement using tear gas and flash-bangs; by midnight, many of them had dispersed.

But that didn’t stop Trump from signing a memorandum mobilizing 2,000 National Guard troops to go to California and quell dissent.

On a recent episode of What Next, host Mary Harris spoke to Liza Goitein, the senior director of the Brennan Center’s Liberty and National Security Program, about why Trump sent the National Guard to Los Angeles. This transcript of their conversation, which was taped Sunday, has been edited and condensed for clarity.

Mary Harris: What legal authority is the president claiming for such a dramatic move?

Liza Goitein: It’s important to start with a baseline, which is that federal armed forces, including the federalized National Guard, under ordinary circumstances, cannot be used to quell civil unrest under the Posse Comitatus Act. This act generally bars federal armed forces, including the federalized National Guard, from directly participating in core law enforcement activity—things like arrests and searches and seizures—unless those activities have been expressly authorized by Congress or in the Constitution. The law was passed in 1878. It has a bit of an ignominious history because it was passed essentially to limit the use of troops to try to suppress white nationalist Ku Klux Klan groups during Reconstruction.

Not a great history there.

But President Trump didn’t invoke the Insurrection Act. He invoked 10 U.S. Code Section 12406, which is a law that uses some language that’s pretty similar to what’s in the Insurrection Act, but has been used by previous presidents as sort of a complement to the Insurrection Act.

So they’ve been invoked together to essentially transfer command and control of the National Guard from the governor to the president so that the president can deploy them under the Insurrection Act. And what President Trump is attempting to do here is to uncouple them and to use 10 U.S.C. 12406 on its own. It’s a little confusing in the memorandum, but he’s possibly doing it to pair it with a claim of inherent constitutional authority to deploy troops to protect federal personnel, property, and functions.

My understanding is that the way the Guard has been called up is supposed to limit what they’re able to do. They shouldn’t be able to act directly on or with civilians as law enforcement. They’re just supposed to be able to support local officers. Is that correct, and if so, is it meaningful?

Well, I don’t know how the Trump administration is interpreting these authorities and how the administration plans to apply them.

So you’re saying we’re in uncharted territory.

Absolutely. I mean, we have waded into completely uncharted legal waters here in the way that Trump is using these authorities.

How unusual is it for the president to federalize the guard over a governor’s objections?

The president has not federalized the National Guard for the purpose of quelling civil unrest or enforcing the law without a state request since 1965. So the last time was when President Lyndon B. Johnson federalized the Guard in order to protect Civil Rights marchers who were marching from Selma to Montgomery, Alabama.

It seems like the president is walking a very narrow path here. He’s not invoking the Insurrection Act, but he’s calling up the National Guard, but he is not doing it with the blessing of Gavin Newsom, the governor of the state. It just seems like there are a lot of places this could go wrong.

Yes, the administration is going to very great lengths at this point to avoid invoking the Insurrection Act. Now, I don’t necessarily expect that to continue. But for now they are trying to rely on these other authorities, and we’ll have to see how this plays out in terms of whether the administration’s hoping to be able to do the very same things that they could do under the Insurrection Act, at least in theory.

Why would the administration go out of its way like that? What’s the point?

It’s difficult to speculate. I mean, I can’t say what’s in the president’s mind. I can say that the Insurrection Act is a very well-known authority at this point. It’s had a lot of publicity, not particularly positive publicity, over the last few years. It’s very controversial. And if the president were to invoke it, it would certainly set off a political firestorm. Whereas 10 U.S.C. 12406, almost nobody has heard of it. It’s very complicated to explain. It’s confusing. The way it’s being used now is untested. And so it muddies the waters in terms of how people might respond to it. It’s a concern because we don’t know how the administration is interpreting these authorities. And we might not know until we see how things play out with the soldiers who have been deployed.

Where’s Gov. Gavin Newsom in all this? The National Guard seems to have been nationalized without his authority or blessing. What does that mean? And is there something he could be doing here given that this is a military operation in his state?

There’s nothing he can do to prevent the federalization of the National Guard. And once the Guard is federalized, Guard forces report to the president. They’re under the president’s command and control; they are no longer under the governor’s command and control. So he has effectively lost control over those Guard forces who have been federalized.

I didn’t know the president had that magic wand, and he could just say, like, “Boop, they’re mine.”

Even though the governor can’t prevent it from happening, certainly ahead of time, what the governor can do is bring a legal challenge. [Ed. note: Newsom indicated later Sunday night that he plans to sue the Trump administration.] He believes that the president is using the National Guard in a way that is unlawful and in a way that is negatively impacting the state. I’m sure the governor is keeping a close eye on what’s happening right on the ground.

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