I was thinking about this when I heard that Trump was sending troops to Portland. I forget his exact reason but IIRC it was something about an invasion. Anyway, that is not an important issue for this question. Let’s say the Federal government want to go into a city to arrest the local or state government, or disrupt the approval of their redistricting plan, or start arresting people violating state laws and holding military trials or some other reason that would clearly violate a state’s sovereignty. Is there any case law, federal statute or Constitution clause that would allow the state’s National Guard to meet the transport plane on the tarmac and with armed resistance prevent the “invasion” of Federal troops.
The last time that happened was the Civil War.
State remedies for federal overreach are primarily legalistic, i.e. appeals to the pertinent US District Court and if necessary the US Supreme Court. The states can also conduct what is termed ‘soft successions’; in essence, rejecting federal controls attached to monies like highway funding, creating interstate alliances, et cetera. There is absolutely no legal remedy involving armed resistance to federal authority, even if that authority is implemented in an illegal fashion, i.e. sending the military to conduct law enforcement or actions against state officials without invoking the Insurrection Act.
Stranger
All the details matter, but let’s be clear on what is actually happening.
Trump says Portland is under attack/being invaded/blah blah. Oregon is unable to maintain order - this is key and fact specific.
Trump is not sending in federal active-duty military troops (ie, Army, Marines). Trump is federalizing the Oregon national guard troops (which then get properly called “federal troops” but that understandably be mistaken for active-duty marines, etc). So now instead of the State/Governor being in command of their national guard, the command goes to the Feds/Trump. Assuming Oregon is really unable to maintain order, this would be legal and constitutional basis.
Examples of this would be during the Civil Rights era. The State was unable to maintain order and was unwilling to address it. Citizens could not attend school, so the President federalized the national guard to maintain order/send kids to school. Or…Citizens could not peacefully protest, so the President federalized the national guard to maintain order/allow them to protest.
In Oregon, I don’t think it meets the threshold of Oregon being unable to maintain order. It can’t just be typical crime or whatever, it needs to be a much more dramatic situation than that. And Oregon needs to be unwilling to confront it. Think the civil rights situations, LA riots, Jan 6.
Finally, I don’t think additional active duty federal troops (marines, army) have been sent to Oregon. I think they were previously sent to California, though. It’s a higher standard to send in active duty federal troops than it is to just federalize the national guard.
So with that, and to now answer your question, it would be extremely unlikely that the national guard would not already be federalized when the active-duty federal military shows up on the tarmac. There would not be a chance for that type of confrontation. So the law would be the President’s ability to federalize the national guard, which there are several and fact specific - that’s why it matters exactly what the reason is to do it. If we’re going to assume the national guard just ignored the “federalized” law/order and stayed loyal to the Governor situation, that would be pretty chaotic and I don’t imagine the Governor would ask the state troops to do that.
The closest I can think of was the Little Rock Nine situation. The national guard was preventing the children from going to school. Eisenhower sent in federal active duty Army troops to ensure the kids could go to school. But Eisenhower also federalized the national guard at the same time so there was no confrontation - I don’t think but if someone knows more about this let me know because it’s pretty on point.
That could be part of the question. Could the state refuse for its National Guard be called up to “invade” itself? Could those National Guard members that get called up be held on a charge of treason against the state? (Colorado I know has a treason law)
Has this law been enforced and, if so, against who?
That’s a good question. I’m ignoring the quotes and hypothetical and strictly answer for what is happening in Oregon. Mostly because what sounds unreal to me is actually real, or vice versa.
No. The national guard can be federalized over the State/Governor, etc objections. They can’t legally stop that from happening. Their recourse, like Stranger explains, is to go to Court to argue the basis of Oregon unable to maintain order did not meet the requirements necessary to be federalized in the first place.
Once federalized, can the national guard refuse to carry out their orders? Generally No, but sometimes. It depends what the Orders are. No member of the military can carry out an illegal order and should refuse to do so. You shouldn’t carry out an order to shoot someone for protesting. Or just go after brown people but leave the whites be. Orders like that are illegal. It doesn’t mean they can say I refuse to guard this federal building (legit order) because the basis for me being a federal troop is wrong. I don’t what refuse to “invade itself” means. I don’t think that is happening. I think the basis for them being there is wrong but I don’t think the national guard’s day to day actions are wrong if that makes sense. They are guarding buildings and helping police to enforce the law, etc.**
Honestly, I’m getting out of my depth. I definitely don’t know anything about State treason.
**I’m oversimplyifing and can see many ways this all ends in disaster. There is the concept of “trip” troops (like trip wire and a bomb goes off). You put a dozen troops in a hostile country and wait for someone to attack them. Now you can send in thousands of troops in response to being attacked. It’s never happened inside America, but I’m positive that’s what Trump is wanting to happen. You manufacture the chaos that you claimed you were trying to prevent.
Example from Colorado
CRS 18-11-101
(1) A person commits treason if he levies war against the state of Colorado or adheres to its enemies, giving them aid and comfort. No person shall be convicted of treason unless upon the testimony of two witnesses to the same overt act or upon confession in open court.
(2) Treason is a class 1 felony.
Has it ever been enforced against Federal officials?