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?
Oregon not only can sue, they have sued.
They’re basing it on a violation of the Tenth Amendment.
I’ll take a stab at clarifying what is happening in Oregon. To do so, it won’t be accurate, so feel free to make me explain anything. For example, yes there is a 10th Amendment argument, but I’m going to pretend there is not because it just complicates things.
The case is whether Trump can federalize the national guard to make sure immigration and customs can do their job. Trump claims there is so much civil unrest in Oregon that it’s impossible for ICE to enforce federal law. If that’s true, Trump can federalize the guard to help ICE enforce federal law.
Everything hinges on this law, 10 USC 12406 that governs the circumstances for when the President can federalize the national guard:
Looking only at No. 3, it says Trump can only federalize the national guard if ICE or other federal agents are unable to enforce federal law (with the broader protection of our military ensuring the US is a safe place). Legally, you should give great deference to the President here, but it’s not a blank check. Judge Immergut, a Trump appointee, doesn’t think that ICE is unable to enforce federal law, therefore there is no basis to federalize the national guard . She blocked Trump’s ability to federalize the guard (a restraining order) until further facts can be gathered to see if that is factually true or not.
As far as I can tell recently, there’s a couple dozen people standing around a single ICE building. Most of them have their phones out videoing the few actual protesters. Some are crossing the line. All a situation the local police and/or federal reinforcements can handle. The rest of Portland is going about their business. That’s not even close to what is required to federalize the national guard. You can’t just say “war ravaged Portland” and make it so. I mean, if you were going to do it anywhere, do it in Dallas, Texas where someone actually shot and killed people at an ICE facility…not that that even qualifies.
Finally, it should not matter if the national guard comes from California, Texas, or Oregon. If the situation in Portland does not require it, then it doesn’t matter. It’s situation specific, not whether they have been previously federalized for a different situation. Once federalized, the guard becomes active duty Army. Brining in active-duty troops is more problematic, so if you can’t send in the Army, you can’t send federalized national guard.
So, while other things are being discussed, it’s really all about this law and prong No. 3 and whether the situation at the time the order to federalize was made (not tomorrow, not last June).
If ever this language should apply, it’d be now
How about these?
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
One possibility discussed in a Times editorial today was to stop an ICE trying to arrest someone and ask what his warrant for the arrest is, also asking for his ID. If he doesn’t answer satisfactorally, arrest him for attempted kidnapping and throw him into the clink.
What an idiotic and self-destructive suggestion! This is the part you are told to STFU, be shoved in a van and driven away too parts unknown. If you actually get the chance for your “counter-arrest” they will converge on you, claim that you violently resisted arrest…then they will tell you to STFU, shove you in a van and you be driven away to parts unknown.
States can have their own State Defense Force (SDF) that answers to the governor and cannot be federalized. In New England, only Vermont has an active SDF, and Connecticut has one in name only (it’s used for ceremonial purposes). Write to your governors and ask them to create an active SDF.
What kind of costs are we talking about here…especially since is pretty much guaranteed to cut funding if a state starts one up?
No idea on cost to the state. But there’s nothing to prevent volunteers.
There is also nothing that creates volunteers out of thin air. People are stretched already, time and money-wise, and what demands for volunteers there are already is coming up woefully short.
Hypothetical: let’s say Trump orders the California National Guard to go to Oregon. Gov. Newsom calls the NG general in charge and says that the guard reports to him; ignore any orders from Trump.
How does that play out?