Four and a half months after his inauguration, Donald Trump is exercising his authoritarian chops, targeting immigrants in the state he most despises — California. Making good on Trump’s nativist pledge to deport millions of undocumented immigrants, agents from Immigration and Customs Enforcement (ICE) and the Department of Homeland Security started conducting widespread raids outside workplaces in Los Angeles. They began on June 6, with no prior notification to the California governor, L.A. mayor or local law enforcement.

During these raids, ICE officers arrested people in military-style operations that instilled fear and panic in the community and terrorized immigrants.

As a result of the Trump administration’s repressive anti-immigrant actions, thousands of people of all races and backgrounds took to the streets in solidarity with their fellow Angelenos and conducted protests that have largely consisted of mass marches and rallies. Some protesters have also engaged in direct actions, such as blocking portions of the 101 freeway. A handful of protesters have vandalized corporate-owned, self-driving Waymo robotaxis to highlight their role in expanding the police surveillance state: the driverless cars are constantly recording surveillance videos that are then used by police.

Local police responded to these protests with a barrage of rubber bullets, flash bangs, and chemical munitions. Then, Trump stepped in to further militarize the crisis he himself had manufactured.

Trump Federalizes the National Guard

On June 7, in an illegal and unnecessary end run around California Gov. Gavin Newsom’s authority to maintain order in his state, Trump issued an edict under 10 U.S.C. section 12406 to activate National Guard units for “the enforcement of Federal law and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”

“No president has ever federalized the National Guard for purposes of responding to potential future civil unrest anywhere in the country,” notes Elizabeth Goitein, senior director at the liberty and national security program at the Brennan Center for Justice. “Preemptive deployment is literally the opposite of deployment as a last resort. It would be a shocking abuse of power and the law.”

Trump also wrote in his edict, “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.” Without limiting his order to California, Trump called into service 2,000 National Guard troops for 60 days at the discretion of Defense Secretary Pete Hegseth.

“No such rebellion is underway,” The New York Times’s June 8 editorial titled “Trump Calling Troops Into Los Angeles Is the Real Emergency” said. “As the governor’s spokesman and others have noted, Americans in cities routinely cause more property damage after their sports teams win or lose.”

Pursuant to his unlawful edict, Trump federalized California’s National Guard and deployed 2,000 guard troops to L.A., later increasing that number by another 2,000.

But Section 12406 also mandates that federalizing the state National Guard “shall be issued through the governors of the States,” and Newsom did not consent to Trump’s deployment of the state National Guard.

A president has not activated the National Guard over a governor’s objection since 1965, when President Lyndon B. Johnson deployed the guard to protect civil rights marchers from Selma to Montgomery without the consent of Alabama Gov. George Wallace.

Section 12406 requires a “rebellion or danger of a rebellion against the authority” of the U.S. government, which has not happened. In a June 9 news release, California Attorney General Rob Bonta wrote, “Let me be clear: There is no invasion. There is no rebellion. The President is trying to manufacture chaos and crisis on the ground for his own political ends. Federalizing the California National Guard is an abuse of the President’s authority under the law — and not one we take lightly. We’re asking a court to put a stop to the unlawful, unprecedented order.”

Governor Newsom Sues Trump, Hegseth and the Defense Department

On June 9, Newsom filed a lawsuit in U.S. District Court in Northern California against Trump, Hegseth, and the Department of Defense. That same day, Trump mobilized 700 Marines from Camp Pendleton in southern California to deploy to L.A., although they have not yet hit the streets since they still don’t have standing rules for the use of force and nonlethal weapons training.

Newsom is asking a federal judge to declare the defendants’ military deployment unlawful and prohibit them from illegally sending the California National Guard and military to conduct domestic law enforcement.

“While the face of the Defendants’ orders purport to direct the deployment of the federalized National Guard members to protect federal property and federal personnel carrying out their functions, these directives are phrased in an ambiguous manner and suggest potential misuse of the federalized National Guard,” the lawsuit’s complaint states. “It is unclear what actions Secretary Hegseth will deem as ‘reasonably necessary to ensure the protection and safety of Federal personnel and property.’”

Newsom’s suit argues that:

1. The federalization of the California National Guard deprives California of resources to protect itself and its citizens, and of critical responders in a state emergency;

2. 10 U.S.C. 12406 requires that the governor consent to federalization of the National Guard, which Newsom was not given the opportunity to do before their deployment; and

3. Trump’s unlawful order infringes on Newsom’s role as Commander-in-Chief of the California National Guard and violates the state’s sovereign right to control and have available its National Guard in the absence of a lawful invocation of federal power.

Top military leaders have also decried Trump’s decision to federalize the National Guard and deploy the Marines in California, arguing that in addition to being illegal, it is also impractical.

“The National Guard works best when it’s under state control and can work hand in glove with its law enforcement partners at the state and local level,” Maj. Gen. David Baldwin (Ret.), the top military commander of National Guard forces in California from 2011-2022, said on the June 10 episode of PBS “News Hour.” “So it’s a little bit heavy-handed to bring the Guard in and the Marines, especially when it’s over the objection of the governor of the state and indeed without the request from the law enforcement leaders on the ground, like Chief McDonnell and the sheriff of Los Angeles.”

James McPherson, undersecretary of the Army during the first Trump administration, stated on the same PBS broadcast, “Combat Marines are trained and exercise in just that, engaging in ground combat. They’re not trained and they do not exercise in crowd control or de-escalation or things like that.” He said he fears an escalation in Los Angeles, stating:

And there’s going to be an escalation. There’s going to be an unfortunate incident, as there was in 1997 on the Texas border, when a similar occurrence occurred. Marines were there to provide surveillance, and they ended up shooting and killing a local teenager who was herding sheep. I think there’s going to be that escalation. And when that escalation occurs, I’m afraid the president is going to invoke the Insurrection Act, and we’re going to have uniformed service members enforcing the law upon U.S. citizens, something that just shouldn’t occur.

Trump Is Itching to Invoke the Insurrection Act

The Posse Comitatus Act bars the use of the military to enforce domestic laws. The act  forbids the willful use of “any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus [power of the county] or otherwise to execute the laws.” The only exceptions must be expressly authorized by the Constitution or act of Congress.

One exception to the Posse Comitatus Act is the Insurrection Act, which would allow a president to order that military forces enforce domestic law even over the objection of a state’s governor.

A president could legally invoke the Insurrection Act in three situations.

First, the president is allowed to invoke the Insurrection Act if the legislature or governor of a state asks for assistance to quell an insurrection against the government, under Section 251. In this case, however, Newsom neither asked nor consented to the use of military troops in California.

Second, the Insurrection Act can be invoked if the president decides that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States,” render it “impracticable” to enforce U.S. or state law in the courts, under Section 252. In the current situation, there has been no allegation that federal or state law cannot be enforced.

That leaves the third instance, where “any insurrection, domestic violence, unlawful combination, or conspiracy” deprives people of a legal right, privilege, immunity or protection, that results in the denial of equal protection or “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws,” under Section 253.

Section 253 was used by President John F. Kennedy in 1962 and 1963 to send federal troops to Mississippi and Alabama to enforce the civil rights laws. In 1957, President Dwight D. Eisenhower deployed troops to desegregate schools in Little Rock, Arkansas, consistent with section 253. And in 1965, President Lyndon Johnson used section 253 to protect civil rights demonstrators from police violence during the civil rights march from Selma to Montgomery, Alabama.

Trump has long wanted to invoke the Insurrection Act. After the massive protests against the murder of George Floyd by Minneapolis police on May 25, 2020, Trump told then-Secretary of Defense Mark T. Esper and then-Chairman of the Joint Chiefs of Staff Gen. Mark A. Milley that he wanted to order “ten thousand troops in Washington to get control of the streets.” Esper and Milley objected, saying the situation was best handled by civil law enforcement and the D.C. National Guard. Trump called his top military leaders “losers” and reiterated his desire to send active-duty troops into Minneapolis. “Can’t you just shoot them?” Trump asked Milley. “Just shoot them in the legs or something?”

The mobilization of the National Guard and Marines will likely exacerbate the volatile situation in the streets of L.A. Trump said the city would have been “completely obliterated” if he had not deployed the Guard. In fact, the protests have been largely peaceful.

There is no comparison between the situation in L.A. now and that in 1992, when then-California Gov. Pete Wilson asked President George H.W. Bush to invoke the Insurrection Act to deploy federal troops to quell the uprising against anti-Black racism and police brutality following the state court acquittal of the police officers who beat Rodney King.

Trump already invoked the specter of “insurrection,” declaring to reporters on June 10, “I could tell you, there were certain areas of Los Angeles last night you could have called it an insurrection. It was terrible. But these are paid insurrectionists. These are paid troublemakers.”

In reality, there is no evidence that “paid troublemakers” have been involved.

Newsom Asks Judge for an Immediate Restraining Order

On June 10, Newsom asked U.S. district judge Charles R. Breyer to immediately grant a temporary restraining order limiting Trump’s deployment of the National Guard in L.A. The motion urges Breyer to temporarily enjoin the defendants from deploying the Title 10 force to “enforce or aid federal agents in enforcing federal law or to take any action beyond those that are required to ensure the protection and safety of federal buildings and other real property owned or leased by the federal government and federal personnel on such property.”

Newsom’s motion also asks the judge to temporarily enjoin the defendants from ordering or permitting the Title 10 force to execute warrants, arrests, searches, checkpoints, or cordons, or patrol communities or otherwise engage in “general law enforcement activities beyond the immediate vicinity of federal buildings or other real property owned or leased by the federal government.”

Breyer gave the defendants one day to file a response to Newsom’s motion and set a hearing for June 12. “The court did not deny or rule on the Governor’s request for a temporary restraining order [TRO]. The court set a hearing for Thursday, after the federal government and the state file additional briefs, and we anticipate the court will rule on the request for a TRO a short time later,” a Newsom spokesperson told The Hill.

If Trump invokes the Insurrection Act, that would allow the Marines and National Guard to explicitly help ICE round up immigrants. Since the Marines are trained in combat, not crowd control, civilians would be more likely to get hurt, or maybe even killed.

But many service members would not take kindly to shooting civilians.

The Duty to Disobey Unlawful Orders

The Uniform Code of Military Justice requires that all military personnel obey lawful orders. A law that violates the Constitution or a federal statute (such as 10 U.S.C. section 12406, the Posse Comitatus Act, and the Insurrection Act) is an unlawful order. Both the Army Field Manual and the Nuremberg Principles enshrine a duty to disobey unlawful orders.

Trump’s deployment of military forces to L.A., and particularly an invocation of the Insurrection Act, will create a legal and ethical dilemma for service members. “Soldiers have not only a right, but a duty, to refuse illegal orders; yet the legality of those orders would be determined by courts-martial of refusers. And service members have a moral obligation not to harm the innocent; yet such harm would be inevitable if troops are used against civilians here,” Kathleen Gilberd, executive director of the National Lawyers Guild’s Military Law Task Force (MLTF), told Truthout.

The task force said in a statement that it is “opposed to the use of military forces to ‘put down’ or ‘control’ the heartfelt reactions by community members to workplace immigration raids in Los Angeles and other cities.” Moreover, it added:

The MLTF will be developing a more comprehensive plan of action, including the use of Article 138 of the UCMJ and the Nuremberg Principles. For now, we pledge our support for members of the National Guard and the active-duty military personnel who are opposed to attacking and killing those who oppose the illegal and immoral removal of undocumented workers.

The situation in Los Angeles is precarious as the Marines prepare to deploy and Trump continues to escalate his spurious claims and frightening threats. People are demonstrating around the country in opposition to the actions of ICE and the Trump administration. And we can expect the protests to grow in strength.

Meanwhile, the legality of Trump’s deployments will be litigated in federal court, and service members deployed to the streets of L.A. will have to decide whether to follow orders they deem unlawful or risk harming civilians.

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