So a state official has the authority to exercise a federal power?
A state official has the authority to place their militia under federal control. Once they’ve done that, that militia is now (ultimately) under the President’s command.
Again, the President does actually have authority to call up the National Guard and state militias. This is not a matter of opinion; it is statute law:
Although still under notional control of the state governor, the President can issue a proclamation for “insurgents” to disperse:
Stranger
The question is not is it a law. The question is is that law Constitutional? Or are there implementations of that law that violate the 10th Amendment.
And to be clear, yes, I know that courts have found that law Constitutional. Courts sometimes get it wrong.
Article I, Section 8, Clause 15 of the US Constitution gives the Congress the authority to:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Congress for its part delegated that authority to the executive in federal statute law:
https://constitution.congress.gov/browse/essay/artI-S8-C15-1/ALDE_00001077/
This power has been argued before the Supreme Court, particularly in Houston v. Moore with the court concurring with federal authority to call up the militia.
Now, we can discuss whether this particular activation was actually justified per various interpretations of the statute (I would argue that it does not meet the criteria in 10 U.S. Code § 252 but have to acknowledged that there is exists a legitimate line of argument that the actions of the protestors comprise “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States”) but there is no question that the President has authority to activate the National Guard. It should be noted that California, like many states, also has a separate militia organization in the California State Guard which is distinct from the Army National Guard and Air National Guard, but statute doesn’t make a distinction between federally-supported state militia and the distinct state function.
Just because you don’t agree with something doesn’t mean it is ‘wrong’. The Supreme Court has made plenty of bad decisions in its history but when they adjudicate the interpretation of a law or the application of a legal principle within the bounds of the Constitution, they are by definition the ultimate authority on the matter.
Stranger
Then we are on very dangerous ground that invoking the first amendment right to protest is now considered insurrection.
And just because you agree with something doesn’t make it right. The Supreme Court is, as you say, authoritative. That’s also not the same thing as right. The Court has, after all, reversed itself on occasion: In every such occasion, it must have been wrong one of those times.
Well, you have a First Amendment right to ‘legitimate’ political expression. Committing acts of vandalism and impeding the (legal if morally objectionable) actions of federal authorities are acts of civil disobedience go beyond what is generally considered political expression. Of course, Americans have long tolerated more restrictive measures on actual expression, i.e. moving political protests into ‘designated zones’ often a mile or more from the event in question so we were already well down that path long before Trump got a bee in his bonnet to take a ride down the golden escalator.
But (in my opinion) this exaggerated response doesn’t have anything to do with quelling dissent; the actual purpose is to create spectacle and even foment a violent response which could ‘justify’ greater federal authority.
The Supreme Court is by definition the arbiter of what is or is not “Constitutional” and whether or not the Court reverses a decision later, it is “Constitutional” at that time. In the case of authority over calling up militia it is an enumerated power within the text of the US Constitution so this isn’t even subject to interpretation about whether it is or is not a federal prerogative. There is literally no debate here other than the question of whether the justification of invoking the particular statute meets the intent of the statute granting the authority to the President to call up the militia.
Stranger
The Second Amendment doesn’t say that.
Isn’t it more like the Federal government can “call up” the National Guard, at which point it becomes part of the Army for all intents and purposes? (not wanting to get into the whole NG, Regular Army, Army of the United States business).
When it’s not Federalized, its units are the armed forces of their respective States, and are under the command of their State’s Governor.
Where I understand the problem in California is that the NG can absolutely be called out to quell civil unrest, but only by the State governor, as while they’re under State command, they’re not subject to the Posse Comitatus Act. And the President can Federalize NG units at will, but can’t deploy them anywhere the Federal military can’t be deployed, which in this case, would be Los Angeles. The USMC has to follow the same rules FWIW.
Here’s the text of 10 USC 12406, which is the law Trump broke according to Newsom v. Trump, presumably by not actually having Newsom cut the orders for the California NG. (italicized section below)
Whenever-
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
AFAIK, this is correct. But then the NG soldiers get active duty pay, benefits etc.
Still an open question thanks to 9th Circuit Court dithering:
Stranger
Federal judge in San Francisco rules use of national Guard in SoCal broke federal law.
Breaking news so the article doesn’t say much more than that.
Yet the Guard remains in LA. These rulings against Trump accompanied by zero compliance or consequences barely even qualify as news anymore.
If the Fat Orange Monster sends troops to Chicago, particularly this weekend with Mexican Independence Day celebrations ongoing, I predict there will be consequences.
Violent, bloody and fatal consequences.
That is really what this regime wants; aside from conditioning the public to see domestic military deployments as normalized, they want a ‘Reichstag Fire’ moment to justify further expansion of federal authority and takeover of opposition-run cities and arrest of defiant protestors and even politicians.
Stranger
Agreed. I have said several times since January they want this to happen so they can invoke the Insurrection Act and impose martial law in the cities controlled by Democrats.
They already got that with the killing of the congressional intern.
Not really big enough to justify bringing out the Marines. It was hard enough to justify sending in troops to downtown LA for what amounted to a two square block protest with some criminal vandalism and burning a few cars, which is basically what happens anytime a sportsball team wins a championship or pennant in Los Angeles.
Stranger