I am deliberately keeping this out of P&E because I don’t want the thread to devolve into Trump v. The City of Los Angeles. Instead think of Eisenhower forcing desegregation in 1957 in Arkansas. I know it is legal as per the USC, but I agree with Gavin Newsome that federalizing the National Guard is a huge breach of state sovereignty and therefore IMO a violation of the 10th Amendment. Plus the United States has a huge army. Why can’t the Feds use the army to quell what it sees as insurrection? A governor preventing Americans from exercising their right to go to school is insurrection as in violent protest or preventing citizens from voting, whatever. So I don’t think there would be any law preventing the US Army from acting within the US in those circumstances.
So is federalizing the National Guard unconstitutional? Have there been any SCOTUS cases on it? Could the Feds steal a state’s Guards if the state were using it to defend themselves from the Feds themselves?
The Second Amendment to the Constitution says nothing about the ability of the President to call up or ‘federalize’ (bring under control of the executive) state militias, and while calling up militias is not an enumerated power within the text of the Constitution, there were a series of Militia Acts that granted legal authority for the President to not only call up and direct state militias against insurrection, incursion (by European colonial powers or Amerindian tribes), or civil unrest as done in 1794 as a response to the Whiskey Rebellion. These powers have been generally held up by the Supreme Court of respective eras as necessary and expedient within some limited scope of effect.
The TL;DR justification Johnson used was to protect demonstrators from hostile crowds (and law enforcement happy to use fire hoses and guard dogs to break up demonstrations.)
Dwight Eisenhower federalized the Arkansas National Guard in 1957 after Gov. Orval Faubus apparently backed out of an agreement to use the Guard to protect Black students from integrating an all-white high school. Eisenhower also sent federal troops, in case the Guard wouldn’t act.
Presidents have also federalized Guard units from multiple states for disaster relief, but I’m guessing most people find that less controversial.
The necessity of the militia. The whole point of a militia is that it’s not under the control of the federal government. When the federal government takes over control of a militia, it’s not a militia any more.
On this Findlaw site I found: “The militia clauses do not constrain Congress in raising and supporting a national army. The Court has approved the system of “dual enlistment,” under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place.” Militias and the Constitution - FindLaw
It seems that when you join the state militia you also join the federalized National Guard, and that is how they are being utilized.
But doesn’t the prez have the power to call up state militias?
Article III, s 2, clause 1:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
If the prez doesn’t have the power to call the militias into the “actual service of the United States”, who does?
No. National Guard units are nominally under control of their respective governor of the state in which they are based. They can be called up for foreign deployment under federal authority (a “Title 10 activation”) where they are used to supplement United States Regular Army and Army Reserve components, or under federal statute for domestic operations per 10 U.S. Code § 252 though 254 cited above.
The situation in Los Angeles didn’t meet the criteria for federalization, which includes invasion by a foreign country, rebellion against the authority of the Government of the United States, and being unable to execute federal laws. At no point was this the case in the Los Angeles area, where local and state law enforcement remained in control. - Governor Newsom suing President Trump and Department of Defense for illegal takeover of CalGuard unit
And I think that is the crux of the matter. Can they be called into service absent a declaration of war? Can they be used within the United States or specifically the states within they serve? Can they be called into service when there is adequate US Army personnel available?
AND here is a further question. Is that clause indirectly amended by the 10th Amendment and is now a federal violation of state sovereignty?
The Militia Act of 1903 created what is now the National Guard and was designed to “codify the circumstances under which the Guard could be federalized.” There are been additional Militia Acts and modifications since, of course. The lawyers will have loads to argue over.
The National Guard gets federalized all the time; it’s not uncommon for NG units to get Federalized for training purposes outside their state, or just for the sake of doing Federal military stuff without having to mess around with the Governor, etc…
What would seem pertinent here is the Posse Comitatus Act, which prevents the Federal military from being used for law enforcement purposes.
What makes Trump’s actions illegal is that he hasn’t invoked the Insurrection Act the last time I checked; he’s just Federalizing them and ordering them around. Eisenhower invoked the Insurrection Act because the Insurrection Act allows the President to use military forces to enforce federal law when state authorities are unwilling or unable to do so, and Wallace in particular was using his NG to thwart Federal law.
I’m guessing Newsom’s legal challenge is somewhere along the lines of violations of the Posse Comitatus act - just deploying the Marines would be a violation of that and of Californian sovereignty, never mind Federalizing their NG and deploying it like that.
Sure, but why isn’t he also countermanding the orders? When the troops get one set of orders, well, they’re likely to obey them, because that’s what they’re trained to do. But when they get two conflicting sets of orders, they’d kind of be forced to consider the question of which orders are legal.
The commanders of the militias, of course. Who are, in most circumstances (probably all, but I don’t want to check all 50 states’ laws), the various governors.
I suspect (no evidence of course) that is exactly why he isn’t countermanding the orders. If he does, the actual servicepersons are going to be stuck disobeying a “legal” order no matter what. Otherwise, they’re following an order which will (FSM make it so) be later ruled illegal, but that’s on their superiors.
Honestly, I think this event proves we’re at a point where we might as well force the issue, but if anything, Trump and his ilk are more prepared for that than the sane parts of the nation, and Newsome may well be right in not forcing it.