PRESIDENT DONALD TRUMP’S call-up of 2,000 citizen soldiers from the California National Guard against the wishes of Gov. Gavin Newsom has few precedents in U.S. history.
Trump insists the federalized troops are necessary to protect immigration enforcement.
But Newsom, who traveled to Los Angeles Sunday to oversee the state’s response, has formally asked Trump to return control of the Guard to the state.
“We didn’t have a problem until Trump got involved. This is a serious breach of state sovereignty — inflaming tensions while pulling resources from where they’re actually needed,” Gov. Gavin Newsom wrote in a social media post Sunday, after formally asking the Trump administration to return control of the National Guard to the state.
In his request, Newsom wrote that local “law enforcement resources are sufficient to maintain order.” He added that there “is currently no need for the National Guard to be deployed in Los Angeles, and to do so in this unlawful manner and for such a lengthy period is a serious breach of state sovereignty that seems intentionally designed to inflame the situation.”
Trump’s federalization of the National Guard may still face court challenges, legal experts say, but his Saturday night order is rare. It marks the first time a president sidestepped local and state officials in calling up state troops since 1965, when President Lyndon B. Johnson sought to protect civil rights protesters in Alabama.
In 1957, the governor of Arkansas activated the National Guard to block nine Black students from entering Central High School in the state’s capital, Little Rock, in defiance of the U.S. Supreme Court ruling in 1954 that segregation was illegal. President Dwight D. Eisenhower took over the Guard and brought in U.S. Army troops to ensure the Black students could attend school.
And in 1962, President John F. Kennedy federalized the National Guard in Mississippi and brought in U.S. Army troops to quell a riot of segregationists who opposed the enrollment of a Black student at The University of Mississippi.
“We didn’t have a problem until Trump got involved. This is a serious breach of state sovereignty — inflaming tensions while pulling resources from where they’re actually needed.” Gov. Gavin Newsom
Trump’s order through a presidential memo Saturday night came after media reports and social media footage of protesters throwing rocks at a Border Patrol vehicle in Paramount, a city with a large Latino population in Los Angeles County. Immigration enforcement officials were there and in other parts of the Los Angeles area making arrests of individuals they say are in the country without authorization. Trump cited “incidents of violence and disorder” in his message. The soldiers will “temporarily protect” the immigration enforcement officers, Trump wrote.
A spokesperson for Immigration and Customs Enforcement told CalMatters in an email that “[i]rresponsible politicians continue to push dangerous and misleading rhetoric that puts communities and law enforcement at risk. Even the Los Angeles Police Departments referred to violent riots yesterday as ‘peaceful protests.’ Americans can look at the videos and images and see with their own eyes that they are dangerous not ‘peaceful.’”
The spokesperson added: “We have arrested a domestic abuser who assaulted someone with a firearm and a child rapist. In defense of these heinous criminals, masked rioters have made it their mission to injure and maim federal law enforcement officials. Make no mistake, rioters committing crimes will be arrested and held accountable.”
Legality of Trump’s LA deployment
Federalizing the National Guard is a “significant” and “unnecessary” move, especially given that “no local or state authorities have requested such federal assistance,” according to Steve Vladeck, a professor of law at Georgetown University.
In a blog post Saturday night, Vladeck also cautioned that Trump’s move is not an invocation of the Insurrection Act, a seldom-used set of statutes that’s a major escalation of presidential powers that can give the National Guard special enforcement powers.
Given the actual powers Trump cited in his memo, soldiers will just “provide a form of force protection and other logistical support for ICE personnel,” Vladeck wrote.
But, he wonders if this is a strategic move by Trump to eventually invoke the Insurrection Act, which was last used by a president in 1992 — also in Los Angeles to quell the unrest following the Rodney King trial. Even then, the state’s governor wanted the extra help.
“It’s possible that this step is meant to both be and look modest so that, if and when it “fails,” the government can invoke its failure as a basis for a more aggressive domestic deployment of troops,” Vladeck wrote.
Kyle Longley, a professor of history, war and diplomacy at Chapman University in Orange County, said he too believes Trump’s deployment of the National Guard is meant to score political points with his base. “This is trying to provoke a response. This is trying to play to Fox News, play to the base of Trump, who have tried to portray cities as cesspools of discontent,” he said.
“What’s more insidious in terms of what I would say, is the threat of trying to bring the Marines forward, because that is a totally different ball game when you’re using U.S. military forces against domestic groups,” he added.
On Saturday, U.S. Defense Secretary Pete Hegseth said in a social media post that “if violence continues, active duty Marines at Camp Pendleton will also be mobilized — they are on high alert.”
House of Representative Speaker Mike Johnson, a Republican, said he doesn’t think sending in the Marines is “heavy-handed,” in an ABC News interview Sunday.
A recipe for tragedy
Mixing protest and soldiers can lead to tragedy, Longley added, referring to the four students killed by National Guard members after they entered Kent State University in 1970 during anti-war demonstrations. Not all of the killed or injured people were protesting.
“Even the L.A. police force have said these have been relatively peaceful demonstrations,” he added. “These are not people throwing Molotov cocktails. These are not snipers up on tops of roofs like they were during the Rodney King rioting and the looting.”
The general prohibition on military forces acting as police “reflects an American tradition that views military interference in civilian government as being inherently dangerous to liberty,” wrote Joseph Nunn, a Constitutional scholar, in 2022.
Another law professor, Chris Mirasola, faulted public officials for overstating Trump’s actions in an essay Sunday morning. “There has been significant mischaracterization of what the president has authorized in the memorandum signed yesterday. Governor Gavin Newsom has criticized, for example, a complete takeover of the California National Guard. This is not provided for in the memo.”
Still, Mirasola wrote in an email that he thinks Trump’s justification for the National Guard was weak. Trump’s “memo seems to equivocate in whether an insurrection in fact exists,” he wrote. If there’s no insurrection, there’s no need for the National Guard, his essay suggested.
“President Trump’s deployment of federalized National Guard troops in response to protests is unnecessary, inflammatory, and an abuse of power,” said Hina Shamsi, director of the National Security Project at the American Civil Liberties Union.
Wearing a mask is legal
In a social media post, Trump also singled out protesters who wear masks.
However, Thomas R. Burke, a San Francisco-based lawyer with Davis Wright Tremaine who’s practiced law on free speech issues for about 35 years, said that protesters have a clear First Amendment right to wear masks.
“The ability to protest anonymously is quite settled, the use of masks specifically,” Burke said in an interview. He added that Trump’s comment “is part and parcel with wanting to suppress speech before it happens, to make protesters be concerned about getting arrested or detained simply because they’re wearing a mask and keeping their identities.”
Wearing a mask while committing a crime is illegal, Burke said, but even that prohibition has limits.
On the one hand, “if the protest becomes violent, and you’re a violent protester wearing a mask, you’re not going to be able to assert, effectively, a First Amendment defense for your mask,” he said. A 19th century California law also forbids this.
But often protesters are arrested for failing to disperse, even if protesters struggle to leave the area quickly enough.
In that situation, “you’re not going to be able to be arrested just because you’re wearing a mask. I mean, they might arrest you, but it’s a First Amendment violation.”
This story originally appeared in CalMatters.