The deployment of California National Guard troops and active-duty U.S. Marines onto the streets of Los Angeles is an assault on federalism, violates federal law, and manifests a dangerous pattern of governmental behavior in defiance of constitutional principles and the rule of law.
None of this was the case until President Donald Trump, against the express wishes of California Gov. Gavin Newsom, federalized the California National Guard, became their commander in chief, and ordered them to thwart both lawful and unlawful demonstrators in Los Angeles.
There, agents of the U.S. Border Patrol and Immigration and Customs Enforcement (ICE) were attempting to make warrantless arrests of persons whom they and their colleagues believed were unlawfully present in the U.S. Demonstrators soon arrived, some of whom peaceably assembled and vociferously objected to the arrests, and some of whom attempted to interfere with them violently.
Clearly, acts of physical interference with even unlawful arrests are themselves unlawful, but condemning government behavior, waving Mexican flags, cheering on those who have been arrested, even standing in the way of federal agents until ordered to move are all protected acts of expression and historically recognized acts of civil disobedience.
The conflicts between some — not all — demonstrators and federal agents at times grew violent, and local and state authorities ordered police to protect the federal agents and keep the demonstrators at bay — but not silence them — while the feds carried out their tasks.
Then the president ordered in the federalized National Guard and then — almost unimaginably — he ordered in active-duty Marines. The sight of active-duty armed troops confronting unarmed persons exercising their constitutionally protected freedom of expression, and the declaration of no free speech zones, was and is gut wrenching, un-American and without lawful precedent in modern times.
Here is the backstory.
The Constitution makes the president the commander in chief of U.S. troops and of state National Guard units when the latter are called into federal service by Congress or by the president. In numerous statutes, Congress has defined when and under what circumstances the president may command state military personnel.
The latter are familiar to most Americans. They are part-time civilian/soldiers, our neighbors, none of whom are on active duty but for a few administrators; and they are typically deployed unarmed to assist local law enforcement when asked by a state governor.
We have all seen them selflessly helping rescue folks and delivering aid after natural disasters.
Can National Guard troops be used for law enforcement? That depends on who summons them.
Congress addressed this in numerous federal statutes, enacted in 1792, 1794, 1795, and again in 1807. The essence of these laws permits the president to declare himself the commander in chief of the National Guard for law enforcement purposes only when asked by a state governor.
Short of the gubernatorial request, the Guard may not be summoned by the president for law enforcement purposes, except in the cases of invasion or rebellion.
Who is in charge of law enforcement?
The Constitution retains the police power in the states. The Supreme Court has ruled that regulations and enforcement of them for health, safety, welfare, and morality are presumptively state functions that were not delegated to the feds when the 13 states formed, and later when the 37 states joined, the Union.
This is the principle of state sovereignty, otherwise known as federalism.
Federalism was reinforced dramatically as recently as 1997 in a case called Printz v. U.S. There, Congress enacted gun regulations and ordered the states to enforce them.
In an opinion by the late Justice Antonin Scalia, which invalidated the statute, the court reinforced federalism — the primacy of the states in matters of safety and the immunity the states enjoy from federal takeovers.
Congress itself has also spoken to this, though not in the modern era. The Posse Comitatus Act of 1878 — part of the compromise that ended so-called Reconstruction in the Southern states — absolutely prohibits the use of federal troops for law enforcement purposes unless the governor has requested them, or unless in the case of invasion or rebellion.
The modern Congress has defined "rebellion" as collective acts of violence intending to overthrow or substantially destabilize the government.
Thus, we can see that federalizing of the National Guard — which transforms them into federal troops — actually disables them from performing law enforcement duties, which they could lawfully have performed when under Gov. Newsom's command. Moreover, since there is no invasion or rebellion as the laws define them, there is no lawful basis for all these troops on the streets.
This is not constitutional hairsplitting. This is very serious business.
If the feds can characterize an unarmed assemblage of protesters as an invasion merely because they are angry, carry a foreign flag, and prefer a foreign language — all protected speech — and engage in civil disobedience, and thus justify the use of military force against them, whose freedoms are safe?
The government argues that the current state of affairs in Los Angeles constitutes an emergency and thus it has broad powers to address it. That is constitutional hogwash.
The Supreme Court has consistently ruled that there is no emergency exception in the Constitution unleashing the government. Even during the War Between the States — though ruling afterward — the court found that the government retains the obligation to abide and recognize all liberties protected by the Bill of Rights.
The emergency argument is not only unconstitutional but extra-constitutional. It was crafted by those who reject their oaths to preserve, protect, and defend the supreme law of the land.
Thomas Jefferson wrote that the purpose of government is to secure our liberties, not to look for ways to assault them.
Are we slouching toward authoritarianism? NO.
The events in Los Angeles are one giant leap in that lamentable irreversible direction.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here.