The Administration deployed approximately 4,000 National Guard and 700 Marines to Los Angeles. This was in response to violence that erupted during “No Kings” protests. While not commonplace, there are instances in our history where state and federal leadership have deployed the U.S. military on our own soil to keep the peace. 1967 riots in Detroit. 1992 riots in Los Angeles. 2020 riots following George Floyd’s murder. In some instances, state governors deploy National Guard assets. In other instances, the governor asks the President to step in and assume command. In this instance, the California governor and the Los Angeles mayor did not ask for the President’s help. They claim they could have managed the situation on their own. But the President chose to act anyway. This is unusual.
We do not live in a police state. Our laws generally do not permit the President or the Defense Secretary or anyone else to deploy the U.S. military on our own soil. So let’s explore under what circumstances our leadership can deploy the U.S. military at home.
Governors Have Limited Authority To Deploy The National Guard
At the outset, let me state clearly that I have nothing but respect for the members of our U.S. military, past, present and future. We live under the freedom they secure. They are brave, and they are patriots. My issue is not with the men and women of our military. My issue is with the manner in which our nation’s leadership is choosing to deploy our military at home.
During the Civil War and Reconstruction, the federal government used the U.S. military extensively for federal law enforcement purposes. It was an extraordinary time. But even during such an extraordinary time, the people and our elected representatives were concerned about military overreach and abuse. In 1878, Congress passed the Posse Comitatus Act. Posse Comitatus is Latin for “power of the country.” The Act generally prohibits the U.S. military from acting as “posse comitatus” in domestic law enforcement.
There are some narrow and specific exceptions to the Posse Comitatus Act. For example, governors can deploy the National Guard to maintain order during riots, protests, or other situations that threaten public safety. We call this type of deployment “State Active Duty.” In these deployments, the governor commands the National Guard, and the state funds them.
The President Has Limited Authority To Deploy The National Guard On Our Home Soil
The President can assume command or deploy the National Guard in limited circumstances at home. Here, the President invoked a particular law, 10 USC §12406. There are three circumstances under this law where the President can deploy the National Guard on our home soil. First, when the United States is invaded or in danger of invasion by a foreign nation. Second, when there is a rebellion or danger of rebellion against the authority of the federal government. Third, when the President is unable with the regular forces to execute the laws of the United States. Here, the President deployed the National Guard “to temporarily protect ICE and other United States Government personnel who are performing Federal functions.”
The Ninth Circuit Court of Appeals upheld the President’s deployment of the National Guard in Los Angeles. The Court found the President had determined that ICE needed assistance from the National Guard to execute immigration policy. The Court further found that the President’s determination was entitled to deference. It did not matter that the Court might have made a different determination. As long as the President had a good faith basis for his determination, the Courts would not interfere. It is not unusual for Courts to give the President some deference on matters involving the military or national security.
Deploying The Marines On Our Own Soil Is Chilling
Importantly, the issue on appeal dealt only with deployment of the National Guard. It did not address the deployment of Marines. So we can expect further guidance from the Courts on this point. By its terms, the law cited by the President applies only to the National Guard. It does not mention any other branch of the Armed Forces. Nevertheless, the President’s Executive Order goes beyond the National Guard and ends with a broad directive. “In addition, the Secretary of Defense may employ any other members of the regular Armed Forces as necessary to augment and support the protection of Federal functions and property in any number determined appropriate in his discretion.” When the Defense Secretary deployed 700 Marines to Los Angeles, he did so pursuant to this broad directive.
I believe this statement in the Executive Order exceeded the law. I further believe that the Defense Secretary’s deployment of Marines for domestic purposes violated the law. It is important that the Courts address this issue and clearly delineate the limits of presidential authority. We should not normalize the deployment of military assets on our home soil.
The President Did Not Rely On The Insurrection Act
You may hear some discussion of the Insurrection Act, which is another exception to the Posse Comitatus Act. Under the Insurrection Act, the President can deploy the U.S. military on our home soil to put down a rebellion or insurrection. Invoking this Act requires a Presidential proclamation instructing the insurrectionists to disperse before deploying military personnel. The President did not issue such a proclamation. The President also did not cite the Insurrection Act in his Executive Order. In my view, the Insurrection Act is irrelevant unless and until the President invokes it.
My How We Contort Ourselves To Justify Our Selective Outrage
Many of us have reacted emotionally to the violence in Los Angeles. We see it all over social media. The rioters gave up their rights when they started damaging property. The illegal immigrants gave up their rights when they crossed the border illegally. We don’t need to care if the President deploys our military against “others,” even on our home soil. Right?
And so it begins. We ignore the clear line in the law. We back up and draw a new line. Until the President crosses that line. Then we back up some more and draw another new line. Until the President crosses that one. We keep backing up and drawing new lines until eventually our heals are hanging over the edge of a cliff. We have nowhere else to go. For all our Second Amendment torchbearers, the right to bear arms is not just to protect us in our homes. It is to protect us against an oppressive and militarized government. Most every militarized government in history began with a seemingly benign act of executive overreach. We should not back up an inch.