Gavin Newsom Defends Federalism Against Trump's Unilateral National Guard Deployment
In a federal lawsuit, California's governor argues that the president's assertion of control over "the State's militia" is illegal and unconstitutional.
On Saturday, President Donald Trump instructed Secretary of Defense Pete Hegseth to deploy "at least 2,000 National Guard personnel" in response to protests against immigration raids in California. But according to a federal lawsuit that California Gov. Gavin Newsom filed on Monday, that unilateral deployment is blatantly inconsistent with the statute that Trump cited to justify it and unconstitutionally impinges on powers that the 10th Amendment reserves to the states.
On the same day that Newsom sued Trump, Hegseth ordered an additional 2,000 California National Guard troops into federal service and deployed about 700 U.S. Marines to the Los Angeles area. "The President's federalization and deployment of the National Guard for reasons not authorized by law and without input from or consent of the Governor contravenes core statutory and constitutional restrictions," says Newsom's complaint, which he filed in the U.S. District Court for the Northern District of California. "Use of the regular armed forces is similarly unlawful here."
In a motion filed on Tuesday, Newsom elaborates on that last point. "For more than a century, the Posse Comitatus Act has expressly prohibited the use of the active duty armed forces and federalized national guard for civilian law enforcement," the motion says. "And the President and Secretary Hegseth have made clear—publicly and privately—that the Marines are not in Los Angeles to stand outside a federal building."
Rather, Newsom says, Trump and Hegseth "intend to use unlawfully federalized National Guard troops and Marines to accompany federal immigration enforcement officers on raids throughout Los Angeles. They will work in active concert with law enforcement, in support of a law enforcement mission, and will physically interact with or detain civilians." Newsom is seeking a temporary restraining order blocking these uses of military personnel.
In his June 7 memo to Hegseth, Trump said he was relying on his authority under 10 USC 12406, which authorizes the president to "call into Federal service members and units of the National Guard of any State" in three circumstances: 1) when the United States "is invaded or is in danger of invasion by a foreign nation," 2) when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States," or 3) when "the President is unable with the regular forces to execute the laws of the United States." Trump seemed to have in mind the second situation.
"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," Trump wrote. That definition of rebellion, Newsom says, is at odds with the usual understanding of the term, which Black's Law Dictionary defines as "an organized attempt to change the government or leader of a country, [usually] through violence." In other words, Newsom says, a "rebellion" requires "something much beyond mere protest or sporadic acts of disobedience and violence."
While "most of those involved in protesting have been exercising their rights under the First Amendment in a peaceful, non-violent, and legally compliant manner," Newsom says, "there have no doubt been exceptions. News reports have shown some individuals in the midst of these protests breaking the law and acting violently, for example by throwing objects at law enforcement officers and damaging property, including by setting fires." But he says local law enforcement agencies have responded appropriately and promptly to such incidents.
"Primarily peaceful protests with some acts of violence or civil disobedience do not rise to the level of a rebellion," the lawsuit says. "Indeed, nothing about the scale of the
protests or acts of violence set these events apart from other recent periods of significant social unrest….At no point in the past three days has there been a rebellion or an insurrection. Nor have these protests risen to the level of protests or riots that Los Angeles and other major cities have seen at points in the past."
The last time the National Guard was federalized for riot control, for example, it was a response to the widespread vandalism, arson, looting, and violence that followed the 1992 acquittal of the Los Angeles police officers who beat Rodney King. In that case, Newsom notes, there were "multiple shootouts, over sixty deaths, thousands of people injured, and more than 12,000 arrests."
Notably, that federal deployment was requested by California's governor at the time, Pete Wilson. In this case, by contrast, Newsom immediately objected.
"The federal government is moving to take over the California National Guard and deploy 2,000 soldiers," Newsom wrote in an X post on Saturday. "That move is purposefully inflammatory and will only escalate tensions. LA authorities are able to access law enforcement assistance at a moment's notice. We are in close coordination with the city and county, and there is currently no unmet need."
According to Newsom's lawsuit, that remains true. The governor has "taken steps to ensure that the State itself is actively providing support, in close coordination with the City and County, and there are no unmet needs from local law enforcement," it says. "Local law enforcement agencies have not requested any assistance, but if they were to do so, the State is more than prepared to meet any needs that may arise. As an example, on June 6 and June 7, the State deployed additional California Highway Patrol personnel to maintain safety and order on Los Angeles highways."
Newsom emphasizes how unusual Trump's intervention is. "This is only the second time in our nation's history that a President has relied on the exclusive authority of this provision to federalize the National Guard," the lawsuit says. "The first was President
Richard Nixon when he called upon the National Guard to deliver the mail during the 1970 Postal Service Strike. This is also the first time since 1965—when President Johnson sent troops to Alabama to protect civil rights demonstrators, under different federal authority—that a president has activated a State's National Guard without a request from the State's Governor."
Newsom notes that 10 USC 12406, the law on which Trump is ostensibly relying, says "orders for these purposes shall be issued through the governors of the States." Trump's memo seemingly alludes to that requirement, saying Hegseth should "coordinate with the Governors of the States" in "identifying and ordering into Federal service the appropriate members and units of the National Guard under this authority."
Yet Hegseth has "unlawfully bypassed the Governor of California" by "issuing an order that by statute must go through him," the lawsuit complains. "This circumvention deprived the Governor of the opportunity that compliance with the terms of the statute would have afforded him—at a minimum, consultation with the President or other federal officials not only as to whether the California National Guard should be called into federal service at all, but if so, which service members and in what number should be called, and for what purposes and what period of time."
Because Trump has not complied with the terms of the statute he is invoking or cited any other valid legal authority, his deployment "infringes on Governor Newsom's proper role [as] Commander-in-Chief of the California National Guard," the lawsuit says. "Except when the State's militia has been lawfully called into federal service, the Governor maintains command and control of the militia."
In the absence of such legal authority, the complaint adds, Trump's deployment violates the 10th Amendment, which reserves to the states "the powers not delegated" to the federal government by the Constitution. "Under our system of federalism, policing and crime control remain one of the most basic rights reserved to the states," the lawsuit notes. "Local control of law enforcement is also essential to the protection of liberty and government accountability." Newsom argues that "deploying over 4,000 federalized military forces to quell a protest or prevent future protests despite the lack of evidence that local law enforcement was incapable of asserting control and ensuring public safety during such protests represents the exact type of intrusion on State Power" that the 10th Amendment was meant to prevent.
Newsom, who thinks governors of both major parties should be alarmed by Trump's power grab, notes that the president's memo is potentially far-reaching. Although it was prompted by the protests in the Los Angeles area, it does not mention any particular location or include any geographic limits. Rather, it purports to authorize the use of federalized National Guard personnel at all "locations where protests against these [federal law enforcement] functions are occurring or are likely to occur based on current threat assessments and planned operations." That language, the lawsuit says, suggests "the National Guard may be compelled to accompany immigration enforcement on its missions in any location with potentially dissenting residents."
Trump "has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority," Newsom notes. Or as George Mason University law professor Ilya Somin put it in an interview with The New York Times, "He is declaring utterly bogus emergencies for the sake of trying to expand his power, undermine the Constitution, and destroy civil liberties." Just as Trump has asserted nonexistent emergencies to justify his trade, energy, and immigration policies, he is now defining rebellion in a way that could cover any potentially violent protest against those policies.
Assuming that definition does not pass judicial muster, what other legal pretexts might Trump cite to justify calling in the troops? The Insurrection Act is one possibility.
"Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings," that 1807 law says, "he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion."
On Sunday, when Trump was asked whether the L.A. protests qualified as an "insurrection," he seemed skeptical of that proposition. "No, no," he told ABC News correspondent Rachel Scott. "But you have violent people, and we are not going to let them get away with it….You actually really just have to look at the site to see what's happening." By that evening, however, Trump was saying that "violent, insurrectionist mobs are swarming and attacking" federal agents in Los Angeles. On Monday, he again described "the people who are causing the problems" as "insurrectionists."
