When It Comes to Fighting Crime With the National Guard, Trump Says, He Can Do 'Anything I Want To Do'
The president's plan to promote public safety by deploying troops in cities across the country is hard to reconcile with constitutional constraints on federal authority.
Testifying in favor of the National Firearms Act in 1934, Attorney General Homer S. Cummings readily conceded that the federal government had "no inherent police powers to go into certain localities and deal with local crime." Yet that is precisely what President Donald Trump says he is prepared to do by deploying the National Guard in cities such as Chicago, New York, and Baltimore.
That plan goes far beyond Trump's anti-crime campaign in Washington, D.C., a federally controlled jurisdiction where he has asserted his authority over the local National Guard and police department. Trump is now claiming he can use the National Guard to tackle crime anywhere he deems it necessary, even without the consent of state or local officials.
"I am not a dictator," Trump declared during a televised Cabinet meeting on Tuesday. He nevertheless asserted that, when it comes to fighting crime, he has "the right to do anything I want to do," because "I'm the president of the United States." In his view, that means "if I think our country is in danger—and it is in danger in these cities—I can do it."
Trump's aspirations as a nationwide crime fighter are plainly inconsistent with the limits that Cummings acknowledged, even as he pushed for federal regulation of firearms under the guise of taxation. The federal government's enumerated powers do not include a general authority to protect public safety against run-of-the-mill criminals, which is part of the police power reserved to the states under the 10th Amendment. But Trump thinks he can override those federalist principles by deploying the National Guard.
Is he right? As a matter of constitutional law, the answer seems clear. But when it comes to the president's statutory authority, the answer is alarmingly hazy.
When Trump took control of the California National Guard last June, he relied on 10 USC 12406, a previously obscure statute that 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." The government's lawyers argued that Los Angeles' protests against the Trump administration's immigration crackdown created both of the latter two conditions.
U.S. District Judge Charles Breyer, who issued a temporary restraining order against the deployment, disagreed. But the U.S. Court of Appeals for the 9th Circuit stayed that order, saying Trump's determination that conditions in California justified invoking Section 12406 deserved "a great level of deference." At the same time, the 9th Circuit rejected the administration's "primary argument that the President's decision to federalize members of the California National Guard under [Section 12406] is completely insulated from judicial review."
In keeping with the terms of Section 12406, the California deployment ostensibly was aimed at protecting federal buildings and personnel, thereby facilitating the enforcement of federal law. Notably, Trump did not invoke the Insurrection Act, which on its face grants the president much broader powers to unilaterally federalize the National Guard.
The second section of the Insurrection Act, 10 USC 252, applies "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." In that case, the president "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."
Like Section 12406, that provision refers to "rebellion," but it also mentions "obstructions, combinations, or assemblages." As the American Law Institute noted when it recommended several much-needed reforms to the Insurrection Act last year, those "antiquated terms" are disturbingly vague and "lack settled contemporary meaning." Still, Section 252 is similar to Section 12406 in focusing on conditions that make it "impractible" to enforce federal law. It is hard to see how ordinary crimes such as assault, carjacking, or homicide fit that description.
The third section of the Insurrection Act is more commodious. Under 10 USC 253, the president, "by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" in either of two situations. The first, which has been invoked by past presidents but does not seem relevant to Trump's plan to fight crime in cities across the country, involves violations of constitutional rights that a state has proven unwilling or unable to protect. But Section 253 also applies when any of the listed forms of illegal activity "opposes or obstructs the execution" of federal laws or "impedes the course of justice under those laws."
Here, too, the focus is on enforcement of federal law, which does not seem to fit the broad public safety mission that Trump has in mind. But both Section 252 and Section 253 seem to grant the president wide discretion in asserting a threat to federal authority. Section 252 applies "whenever the President considers" that various unlawful activities make enforcement of federal law "impracticable…by the ordinary course of judicial proceedings." Section 253 authorizes the president to "take such measures as he considers necessary" to suppress "domestic violence, unlawful combination, or conspiracy" when it "opposes or obstructs" federal law enforcement.
Whatever leeway the Insurrection Act may give the president, Trump has not described his crime-fighting goals in terms that fit the language of the statute. He says National Guard deployments in Chicago and elsewhere would be modeled after the one in the District of Columbia, which is aimed at "restoring safety in our nation's capital" by fighting "out-of-control violent crime." That is working so well, Trump says, that he plans to take the show on the road. "After we do this, we'll go to another location, and we'll make it safe," he said on Friday. "I think Chicago will be our next and then we'll help with New York." He also has suggested he would use the National Guard to "clean up the crime disaster" in Baltimore.
Why does Trump think he has the legal authority to use the National Guard this way? An executive order that he issued on Monday provides a clue.
Trump instructed Secretary of Defense Pete Hegseth to "designate an appropriate number of each State's trained National Guard members to be reasonably available for rapid mobilization" to "assist Federal, State, and local law enforcement in quelling civil disturbances and ensuring the public safety and order whenever the circumstances necessitate, as appropriate under law." He did not cite Section 12406 or the Insurrection Act. Instead, he broadly invoked "Title 32 of the United States Code," which describes the functions of the National Guard and includes a provision on which Trump relied during his first term.
In June 2020, the month after George Floyd was killed by Minneapolis police, Trump deployed National Guard troops from 11 states in response to protests in Washington. Attorney General William Barr explained that Trump "requested assistance from out-of-state National Guard personnel, pursuant to 32 U.S.C. § 502(f), which authorizes States to send forces to assist the '[s]upport of operations or missions undertaken by the member's unit at the request of the President or Secretary of Defense.'"
That use of Section 502(f) was "unprecedented," Joseph Nunn, a national security specialist at the Brennan Center for Justice, noted last November. While the provision "facilitates a range of important domestic National Guard missions," he said, it "had never before been used for a federally requested deployment in response to civil unrest."
Section 502(f), Nunn explained, "occupies a middle ground" between default state control of National Guard units and the federalization authorized by Title 10. "In this hybrid status, the Guard remains under state command and control but can perform federal missions, is paid with federal funds, and receives federal benefits," he wrote. "Crucially, because Guard personnel in Title 32 status are under state control, they have not been federalized and are not subject to the Posse Comitatus Act. That means they are not barred from participating in civilian law enforcement activities."
Barr's legal rationale for the June 2020 deployment of National Guard troops in the District of Columbia, Nunn noted, suggested that Section 502(f) "authorizes the use of National Guard personnel to perform any mission the president could conceivably request." That reading of the law, Nunn argued, is "inconsistent with the statute's legislative history, its place in the statutory scheme, and judicially established rules of statutory interpretation." The provision, he said, "is not a blank check allowing the president to use military forces anywhere in the country and for any purpose so long as [he] can find one willing governor."
The 2020 deployment also raised the question of "whether the deployment of unfederalized, out-of-state Guard troops into a nonconsenting jurisdiction would be lawful if that jurisdiction were a state," Nunn wrote. He thought the answer was clearly no.
Nunn warned that the Trump administration's "unbounded interpretation" of Section 502(f) "risks subverting the broader statutory scheme Congress has created to govern domestic deployment of the military." That scheme includes the Posse Comitatus Act, which bans the use of the armed forces for law enforcement "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress."
Nunn added that "if a future president were to rely on this interpretation of the law to ask governors to send unfederalized Guard personnel into a nonconsenting state—as opposed to a non-state jurisdiction like D.C.—that deployment would violate the Constitution." That is the situation we will confront if Trump follows through on his crime-fighting plan.
