Prof. Michael McConnell on the Constitution and the President's Calling out the National Guard

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it; note that this is about the constitutional objection to the President's actions, not about the particular statutory scheme that's involved or about the wisdom of the actions:

Critics claim that President Trump's use of National Guard troops to quell the violence in Los Angeles over the opposition of the governor is contrary to the Constitution's principles of federalism. This particular line of criticism is mistaken.

This issue was debated at the Constitutional Convention in 1787. The National Guard is the modern form of what the Constitution calls the "militia." The delegates voted to empower Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions," in which case the President would be their Commander in Chief. (Article I, Section 8, Clause 15; Article II, Section 2, Clause 1.) Consent of the state governor is not required. To be sure, Article IV, Section 4 imposes a duty on the United States to protect the States against "domestic Violence" only on application of the state legislature or governor, but the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities.

Some delegates—led by Elbridge Gerry and Luther Martin, both of whom later opposed ratification of the Constitution—took the opposite position, the one now espoused by some critics of President Trump. Luther Martin urged that states be left "to suppress Rebellions themselves." II Farrand 48. Elbridge Gerry, sounding much like Governor Newsom, stated that he was "against letting loose the myrmidons of the U. States on a State without its own consent." Referring to Shay's Rebellion, which was suppressed without federal help, he averred that "[m]ore blood would have been spilt in Massts in the late insurrection, if the Genl. authority had intermeddled." II Farrand 317.

That position was rejected by the majority of the Convention, who adopted instead the provisions quoted above allowing deployment of the militia to enforce federal law and suppress rebellion. Nathaniel Gorham of Massachusetts (who may be little known today but was Chairman of the Convention's Committee of the Whole), best expressed the majority view: "With regard to different parties in a State; as long as they confine their disputes to words they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it." In other words, peaceful protest is permitted, but when protest spills over into violence, the national government is entitled to intervene. That is the rule today.

Whether President Trump's actions are justified as a matter of prudence may well be debated, but the notion that the Constitution's rules of "federalism" are offended by federal intervention absent gubernatorial request is contradicted by the words and history of the Constitution.

Comments

[Joe_dallas]

"The National Guard is the modern form of what the Constitution calls the "militia." The delegates voted to empower Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions," in which case the President would be their Commander in Chief. (Article I, Section 8, Clause 15; Article II, Section 2, Clause 1.) Consent of the state governor is not required. To be sure, Article IV, Section 4 imposes a duty on the United States to protect the States against "domestic Violence" only on application of the state legislature or governor, but the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities."

Very important point

Secondly, those opposing Trumps actions cant bring themselves to condemn the actions of the state officials impeding the ability to quell the riots and destruction of property.

[Ridgeway]

That overlooks the fact that Congress has indeed set forth the circumstances under which the President can federalize the militia/NG -- under some circumstances with the consent and cooperation of the relevant state government, and under others without. So the argument is whether Trump has acted in accordance with those laws.

[DaveM]

You're adding the "consent" qualification yourself. That's what I mean by trying to tweak the application of the grant of commandeering power. That won't work.

[Bubba Jones]

No. Congress added the consent qualification.

[bye]

Don't see too many in the current Congress on your side though

Congress steps in amid 'out-of-control' Los Angeles riots as Democrats resist federal help
The resolution is being led by Rep Young Kim and is signed by every Republican in California’s congressional delegation

You will say "That is evidently partisan" but that destroys your point. What are the chances in a riot with looting, abuse of police, destruction of property , now curfews --- that it divide on party lines.
NIL

[Randal]

No, this is great. You just made the case for the next Dem president to use the National Guard to enforce mask mandates in Texas or magazine bans in Utah or whatever the hell else.

Normally the right doesn't like armed feds roaming around. This is fun.

[CountmontyC]

Are mask mandates or magazine bans federal law? Because rioting and interfering with federal law enforcement is definitely against federal law and that would be a big difference.

[Randal]

Are mask mandates or magazine bans federal law?

Yes, it's an executive order in this hypo.

Just last year Kristi Noem thought that federal control of the National Guard was a bad idea.

If Joe Biden federalizes the National Guard, that would be a direct attack on states' rights.

Get ready for the National Guard to come enforce bathroom and sports desegregation in Florida.

[bye]

No, it isn't.

"the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities."

[Bubba Jones]

Bingo. The Constitution empowered Congress, not the President to call forth the militia.

Congress empowered the President, with the qualification that it go through the Governor.

[Carl_N_Brown]

The post-Spanish American War federalization of the state militias and the formalization of state militias as National Guards in 1933 drew a legal distinction between the National Guard (organized militia) and the unorganized militia - basicly anyone eligible to volunteer for military duty.

In addition to their National Guard, several states have a state defense force or state guard answerable to their Governor. New York State has the New York Guard and New York Naval Militia. Tennessee has the Tennessee State Guard. A total of 19 states plus Puerto Rico have active state defense forces which by law are also the command authority for the unorganized militia.

[Rossami]

Where, precisely, did Congress insert that governorial consent requirement? I can't find that requirement.

[bye]

NO,it isn't. It is whether in his mind he was acting by the laws.
IT is an Executive decision , not a math problem with the answer in the back of the book.

[Bored Lawyer]

Again, one thing that sets Trump's actions apart from prior ones is that he did so to protect federal officers and federal facilities. That's not just a riot because people are upset that state or local cops killed someone.

[Roger S]

Yes, Trump would have the power to protect federal officers, regardless of all these other arguments.

[David Nieporent]

The issue is not whether Trump has the power to protect federal officers. Obviously he does. He could send 10,000 FBI agents there if he wanted. The issue is whether Trump has the authority to use the National Guard to protect them, and if so, how.

[DaveM]

I reached much the same conclusion based on the simple logic that a power granted is a power one must able to exercise.

Those unhappy with this will need to change the grant itself, not try to tweak its application.

[Bubba Jones]

>power granted is a power one must able to exercise.

Yes. And there was a process laid out for the exercise of this power. He has not followed it.

[MollyGodiva]

This argument ignores the 2A "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The right to have a militia is given to the people, not the president.

[bye]

Molly, Molly, that is so plainly wrong. We had 18-20 State constitutions before the Federal and this is clear

Federal Support:
The Articles of Confederation and the Constitution recognized the role of state militias, allowing them to be called upon by the federal government in times of need.

in 1965, when President Lyndon B. Johnson deployed National Guard troops to Alabama, without a request from the state’s governor, in order to protect civil rights activists who were marching from Selma to Montgomery

LBJ, MR LIBERAL
To mobilize the National Guard troops this weekend, Trump instead invoked Title 10, Section 12406 of the U.S. Code, which allows for the federal deployment of National Guard forces in limited circumstances, including if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.” The provision states that the President may call the troops “in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.”

[MollyGodiva]

Trump is not following that law because he cut out the governor.

[bye]

the power, as opposed to the duty, of the federal government to use the militia to enforce federal law was not made subject to the will of state authorities." in the first post by Joe Dallas

Now that this has happened, the people on the hot seat are Newsom and Bass

FBI Arrests Foreign Invader Who Distributed Anti-Gas-Mask Face Shields to Rioters; Man Is a Member of a Latino Gang Paramilitary "The Brown Berets"

[Joe_dallas]

MollyGodiva 24 minutes ago
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Trump is not following that law because he cut out the governor.

Neither are newsom or Bass who are impeding the law enforcement from quelling the riots

Trump is only fixing the FU' of bass and newsom

[Kazinski]

What's this bit about in Article 1 Section 8:

To provide for calling forth the Militia to execute the Laws
of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to
the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the
discipline prescribed by Congress;"

The right given the people is the right to bear arms.

But they are clearly at the beck and call of Congress. And Congress provided for calling forth the militia by giving the President the authority.

[Bored Lawyer]

Right. The power is granted to Congress. Congress passes a law, the Executive branch executes it. This is really basic stuff.

Only question is whether Trump followed the law(s) that Congress passed. tylertusta has done an admirable job of collecting the relevant statute(s).

[Bubba Jones]

The 2A is not the basis of the militia.

The militia is the basis of the 2A.

[A Woman of No Importance]

But on the subject of the Second Amendment, a question: Conservatives have been telling us for years that citizens need lots and lots of firepower to protect themselves from tyrannical government. To a certain extent tyrannical government is in the eye of the beholder, but there is little doubt that those opposing ICE see ICE as the tyrannical government here. So, would they have the Second Amendment right to show up with lots and lots of firepower to oppose ICE?

Please note what I am not asking. I am not asking if the logistics are feasible or who would likely win. I'm asking if, in principle, liberals have the same Second Amendment right to fight governmental actions they view as tyrannical that conservatives do. If someone shoots up a bunch of ICE agents, do they have a Second Amendment defense?

[Roger S]

ICE is going after aliens, who are not even citizens.

[A Woman of No Importance]

That's not relevant to my question. You've stated why you agree with what ICE is doing. But does someone who not only disagrees, but who also views it as tyrannical, have a Second Amendment right to forcibly oppose tyranny, even if you disagree that it's tyranny?

[A Woman of No Importance]

Though I will acknowledge that "who gets to decide what's tyranny" is a relevant inquiry, which is why I've always been skeptical of the practicality of the conservative Second Amendment approach. If and when we actually put that to a practical test, the winner will be whichever side has the most firepower, not necessary which side is philosophically on the right side.

[Bunny495]

" the winner will be whichever side has the most firepower"

That sure worked out well in Vietnam.

[Brett Bellmore]

Well, yes, the winner will be the side with more firepower.

The point of the 2nd amendment is to make sure the people as a whole are that side. Insurrectionists will lose if they are a minority of the people, they will win if they are a majority. It's kind of like elections in that respect: You win them on the basis of numbers, not being philosophically right. (Hopefully being right results in you having the numbers on your side, in both cases.)

[Rossami]

Yes, they have a 2A right to be armed.

No, the 2A does not automatically authorize you to overthrow the government. You still have to take the risk of pledging your lives, fortunes and sacred honor to that cause and then win.

Along the way, it helps to convince a large majority of the rest of the population that the government actually is tyrannical. Since the current fight is being spun entirely in an R vs D frame, that will fail because the vast majority of us independents (and a fair number of those who call themselves R or D) see that the parties are far more alike than different in their view of what government power should be.

[Michael P]

People have a Second Amendment right to protest while armed, although California and LA broadly infringe that right by prohibiting open carry (at the state level) and greatly limiting concealed carry (at the city level).

There's no Second Amendment defense when attacking people, whether they be ICE or private citizens, and whether the attack be with a firearm or fist or cinder block.

[Kazinski]

"If someone shoots up a bunch of ICE agents, do they have a Second Amendment defense?"

The second amendment protects a right to bear arms not to use them. The right to self defense is a common law right, and doesn't protect use if you start the confrontation. So lets be clear about that if you do have a right to bear arms in a riot zone, the very act of going out to confront ICE forfeits any possible right to use your arms.

In California its also akin to murdering your parents and pleading for mercy because you are an orphan. California has resisted the 2nd amendment tooth and nail, and the 9th circuit has aided and abetted them. There is no open carry right in California, permits are still hard to get.

As for lots and lots of firepower, California also has a 10 round magazine limit, assault weapons are outlawed, and their are dozens of other limits.

But of course those are legal limits, if they want to go all in and pledge their lives and sacred honor, well then, their terms may well be found acceptable.

[Kazinski]

And I hope you will forgive me for imagining an amusing cartoonish thought bubble over your head.

"draw a woman of no importance with a thought bubble over her head saying "The gun nuts will freak out if I say the rioters have a second amendment right to shoot the ICE agents"

https://x.com/KazKazinski/status/1933316388875350219?t=fti6XE0ldOzLCU9WPNVTYA&s=19

[bye]

Molly , I go immediately to Lincoln

…To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated.

[tylertusta]

The only question I have is whether Judge Breyer will create a "Trump Exception" into the statute.

[tylertusta]

Based on oral arguments, it's highly likely that Judge Breyer creates a Trump Exception.

[Sarcastr0]

It's like you're metaphysically incapable of ever believing Trump broke the law.

[tylertusta]

It's like you're metaphysically incapable of believing anything else about people you disagree with.

[Sarcastr0]

There are people who call them like they see them.

And then there are people who insist Trump's always on the right side of the law. And morality. And politics.
And every judge who rules against him is an anti-Trump hack.

Your comments have not once strayed from the second camp.

[William of Brooklyn]

Sarcastr0, it is incredibly important to distinguish between being on the right side of the law, and being on the right side of a moral question. Or a policy question. This is basically a legal discussion website, so while those other two questions are important, in the legal context they are irrelevant. As to your other point, about whether Trump is always on the right side of the law, I cannot think of a single instance, in either of his presidencies, where he did not abide by the final, final, final appellate ruling. Can you?

[bye]

William, people like the ones you are addressing are the worst kind of legalist, now natural law, no prudential decision-making, just some robot-like objectivity that destroys things but feels superior

THIS IS LINCOLN
…To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated.

[bye]

I'm with Lincoln that this is the famous False Dichotomy in Logic

…To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was violated.

[jpsextonesq]

It seems to me that the real issue is the Posse Comitatus Act (PCA), which places limits on the constitutional scheme rightly articulated by Prof. McConnell. The PCA (18 U.S.C. § 1385), enacted in 1878, bars using the Army or Air Force "to execute the laws" or act as a posse comitatus, unless expressly authorized by the Constitution or Congress. Moreover, Congress holds power under Article I to regulate the militia and allocate how federal forces may be used domestically. Hence the need for Pres. Trump to rely on the Insurrection Act, which is a statute Congress enacted under its constitutional power to call out the militia (Article I, §8, cl. 15, 16). That law expressly allows the president to deploy federal forces to suppress insurrection, domestic violence, or to enforce federal rights, which temporarily suspends the PCA’s prohibition. So, while a governor can rely on the nation guard for law enforcement purposes, the President cannot do so without invoking the Insurrection Act. I think that will be the primary issue.

[tylertusta]

The Insurrection Act is not the only way around Posse Comitatus.

[jpsextonesq]

That depends on how you want to use the military. The PCA is essentially the sole manner by which the President can utilize the military for law enforcement purposes. Protecting federal officers and federal property is a different matter. But there is a reason that the administration/it surrogates has/have been using the word "insurrection" recently. In any event, if the President wants to use the military to conduct ICE raids, etc., he will need to successfully invoke the PCA.

[tylertusta]

10 U.S. Code § 12406

Whenever—

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

Trump invoked that statute.

[Sarcastr0]

PCA still applies. It constrains the purposes for which the NG may be used when activated.

[Ridgeway]

" Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia."

And this is the part of that statute that requires the consent/cooperation of the state govt.

[Rossami]

"shall be issued" is an instruction, not a request for consent.

[Sarcastr0]

Your read both makes the governor bit a useless addition to the law, and commandeers them in contravention of the 10A.

[Rossami]

re: useless addition - No because it requires coordination (though not necessarily cooperation) in the communication of the orders. That, at least in theory, preempts the problem of contradictory orders.

re: 10th Amendment - Maybe except that Congress (with SCOTUS support) rendered that toothless more than a century ago.

[bye]

With that Governor, yes, and now we have the goods

- The man seen distributing tens of thousands of dollars worth of face shields in Los Angeles to rioters has been identified as Alejandro Orellana, a known member of the Brown Berets, a radical Latino paramilitary group that are currently embedded in cities across the United States.

[Michael P]

What action(s) satisfied this part?

Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

[not guilty]

"Trump invoked that statute."

Uh, no. President Trump falsely purported to invoke that statute, but he issued no order through Governor Newsom pursuant to 10 U.S.C. § 12406.

[Brett Bellmore]

Actually he did, he just covered the bases by sending the order to multiple people.

[JD85]

Uhh.....
"That position was rejected by the majority of the Convention, who adopted instead the provisions quoted above allowing deployment of the militia to enforce federal law and suppress rebellion."

If it's only allowed to enforce federal law and suppress rebellion...doesn't seem applicable here

[tylertusta]

Trump's proclamation:

"In addition, violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property. 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."

https://www.whitehouse.gov/presidential-actions/2025/06/department-of-defense-security-for-the-protection-of-department-of-homeland-security-functions/

[bye]

and that is matched and corroborated now

- The man seen distributing tens of thousands of dollars worth of face shields in Los Angeles to rioters has been identified as Alejandro Orellana, a known member of the Brown Berets, a radical Latino paramilitary group that are currently embedded in cities across the United States.

[Bored Lawyer]

In what alternative universe. Federal officers try to enforce federal law, a mob attacks them. You seriously think that the president is powerless to protect them?

[bye]

PLUS

FBI Arrests Foreign Invader Who Distributed Anti-Gas-Mask Face Shields to Rioters; Man Is a Member of a Latino Gang Paramilitary "The Brown Berets"

[bye]

THe great damage and the discovery of the Brown Berets terrorist group being involved --- will give Trump the victory

Journalist Andy Ngo reported that “Far-left extremists set up a website to crowdfund riot gear for the open border insurrectionists in Los Angeles.”

U.S. Attorney for the Central District of California Bill Essayli announced this morning that the FBI’s Los Angeles branch has arrested Alejandro Theodoro Orellana on the charge of Conspiracy to Commit Civil Disorders (18 USC 371) for his part in distributing face shields to suspected rioters.

Orellana is an alleged member of the Brown Berets, “a radical Latino paramilitary group that are currently embedded in cities across the United States,” BINGO !!! TRUMP WINS

[David Nieporent]

Oh, god. The same people who had never heard of Tren de Aragua before 2024 and were definitively identifying members from their tattoos a few weeks later are now going to be confidently talking about some alleged "Brown Berets" that don't exist.

[bye]

Okay, folks, David has done one of his famous "I will not retract even if I turn out to be wrong" moves.
So let's just see. Is that a Brown Beret member? Let's just see.
My sources say David is betting on the wrong horse (again)

[Brett Bellmore]

A key part of that shtick is that he makes a point of deploying it when he can easily be proven wrong.

"The Brown Berets (Spanish: Los Boinas Cafés) is a pro-Chicano paramilitary organization that emerged during the Chicano Movement in the United States during the late 1960s. David Sanchez and Carlos Montes co-founded the group modeled after the Black Panther Party. The Brown Berets was part of the Third World Liberation Front. It worked for educational reform, farmworkers' rights, and against police brutality and the Vietnam War. It also sought to separate the American Southwest from the control of the United States government.

The Brown Berets' high visibility and paramilitary stance made it a key target for infiltration and harassment by local police, the Federal Bureau of Investigation (FBI), and other law enforcement agencies. The majority of the Brown Berets' chapters disbanded in 1972. Several groups reformed and became active after the passage of California Proposition 187 in 1994."

[Bored Lawyer]

Let me again put on the table the case of In re Neagle, 135 U.S. 1 (1890), https://supreme.justia.com/cases/federal/us/135/1/

Another case where Californians attacked a federal officer, there a justice.

[JoeFromtheBronx]

In other words, peaceful protest is permitted, but when protest spills over into violence, the national government is entitled to intervene.

The national government has a general power to intervene, without state request, any time a local protest spills into violence? What a curiously broad assertion of national power.

The two provisions cited are logically distinct. The militia serves as a federal resource to deal with upholding the "Laws of the Union, suppress insurrections, and repel invasions."

And you do not need state authorization for that, though state involvement will provide certain checks. There is no "insurrection" here. If the local protests seriously interfered with federal immigration enforcement, you might have a different case.

Even then, you would have to examine how Congress has regulated the issue, including what federal personnel can be used.

OTOH, you have the Art. IV provision that addresses wide-open state matters. The federalism implications are apparent. The state request is important there. The local government sought out federal help in the Shays' Rebellion matter.

The argument here is even if they didn't, the federal government could have intervened in local affairs. Federal involvement every time a public protest gets violent is a dangerously open-ended intervention into local police affairs.

A local militia, necessary for the preservation of a free state, is generally entrusted with such things.

[Kazinski]

"If the local protests seriously interfered with federal immigration enforcement, you might have a different case."

I don't know where you are getting your news, but that is exactly the case we have here.

[Sarcastr0]

Federal immigration enforcement continues. Your scope is off.

[Kazinski]

Oh so its your position that Eisenhower was wrong in calling out the national guard in Little Rock to enforce integration of the public schools because in Chicago the schools were integrated.

It's not seriously asserted that some ICE agents in LA were interfered with. Whatever level of intervention is needed to end the the interference is justified.

Right now 4000 troops may be sufficient, but I think there are more available.

[Sarcastr0]

If it was regional, maybe. These protests aren't even regional.

Also of note is Ike used a different statute.

[Bored Lawyer]

The words "seriously interfered" are doing a lot of work in your post. There was interference. With violence. What do they have to do to be "serious?" Whip out a bazooka?

[JoeFromtheBronx]

The words "seriously interfered" are doing a lot of work in your post. There was interference. With violence. What do they have to do to be "serious?" Whip out a bazooka?

A SWAT team isn't necessary any time violence is present for a local dispute. Such special firepower warrants a special need.

The same applies with the calling up of the federal militia, especially when it is going to clash with local affairs.

The Militia Act of 1795 noted:

whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act it shall be lawful for the President of the United States, to call forth the militia of such state etc.

Not "whenever there is violence." When normal judicial procedures or marshals could not uphold the law.

And, my comment set forth principles. I did not make a factual finding as such. But see, Sarcastr0's comment.

[JoeFromtheBronx]

See also the statutory language quoted by someone else:

"the President is unable with the regular forces to execute the laws of the United States"

Not "whenever there is violence" ... when regular forces are unable to execute the laws. When is that likely to happen?

When there is serious interference.

[Armchair]

If the situation is severe enough for the Mayor of LA to declare a curfew, it's serious enough that the normal forces are unable to execute the law without backup.

[Michael P]

There is violent, organized, sustained resistance to federal officers who are enforcing federal laws. Some of those federal agents are getting doxxed, in the apparent hope they or their families will be attacked at home. How much more parallel do you need with, say, the Whiskey Rebellion before you recognize that there is in fact an insurrection going on?

It has not escaped notice that you keep inserting extraneous qualifiers into constitutional and statutory constructs.

[Sarcastr0]

"Throughout western Pennsylvania counties, protesters used violence and intimidation to prevent federal officials from collecting the tax"

vs.

Protests in one part of LA that interfered with single digits of attempted deportations.

ICE feels safe enough to continue raids elsewhere in LA

[bernard11]

You should realize, Michael P. that the demonstrations are confined to a very small area, the city is not in flames, that all the BS about it is just that, encouraged by Trump, spread by idiot cultists like yourself.

See here, and here.

[Michael P]

Jack the Ripper only targeted a small part of London. That made him totally worth ignoring by your logic, right?

[bernard11]

And your logic is that the demonstrators are all serial killers?

How stupid is that? Unbelievable idiocy.

[Michael P]

Analogies, how the fuck do they work? bernard11 may need an ICP song to figure it out.

[Sarcastr0]

I, too, remember when London activated it's military to stop Jack the Ripper.

[Sarcastr0]

‘Don’t criticize my legal argument I only want to stop bad things!’ is a weak fallback.

[bye]

Were you sleeping in the woods during Biden's abysmal non-intervention with rioting,BLM, ghetto fires and great destruction of property.

[JoeFromtheBronx]

Kristi Noem: "We are not going away. We are staying here to liberate the city from the socialists and the burdensome leadership that this governor and that this mayor have placed on this country and what they have tried to insert into the city."

This underlines the danger of some open-ended authority for the federal government to address "violence," & no, the text and history of our country doesn't change that.

[bernard11]

Kristi Noem is a genuine fascist.

She stood and watched while her, or Trump's, goons manhandled Sen. Padilla for trying to ask a question.

Video here.

[bye]

Chuck Schumer didn't like it

Why did he have to go to the office? Photo Op. I don't know but it sure seems a very foolish thing to do. Senators usually don't go in person to get information like that. they have staff, emails, phone calls, forced hearings...seems so far to me like "I think I will disrupt Ms Noem and get some liberal points in the process"

[Bob from Ohio]

Don't get Resistance! points adhering to norms, its confrontation time. Newsom is getting most of the sweet Resistance! love right now.

[bernard11]

It's not a foolish thing to do, and he is fully entitled to go to the press conference.

SInce when is asking a question at a press conference "disrupting" it?

Since when does it get you manhandled? Are you suggesting he tried to physically attack Noem, and needed to be restrained? Maybe that's the next lie Trump is going to try out.

[Brett Bellmore]

" SInce when is asking a question at a press conference "disrupting" it?"

When it's not your turn to ask a question?

[Bob from Ohio]

"goons"

Federal law enforcement I think you mean.

[bernard11]

The two groups are not mutually exclusive.

[David Nieporent]

Jackbooted thugs.

[Bob from Ohio]

Why didn't chuck post the whole video? What happened before?

[Bunny495]

Trying to ask a question while shouting over a speaker holding a prearranged press conference who was talking.

[bernard11]

Most press conferences are pre-arranged.

And what did Noem do? Whose bright idea was it to attack the guy and handcuff him?

[Brett Bellmore]

Whose bright idea was it to shout over the speaker, instead of waiting for the question and answer period?

The Senator's, of course. He planned to get footage of himself being dragged out, which is why he didn't behave civilly and wait for his turn to speak.

[bye]

As we know this morning, Padilla staged this and wanted the publicity.

[MollyGodiva]

The Trump administration has clearly said their goal is to use the US Military to overthrow the Government of California. The California Militia needs to be fighting to protect the state, not assist those trying to destroy it.

[bye]

That is a lie , Molly. Find that qoute and I promise I will leave Reason. Go ahead

[MollyGodiva]

https://www.youtube.com/watch?v=QSnrzrqEOk8
4:14
Now get your fascist ass off this website.

[Roger S]

Noem says: "we are not going away we are staying here to liberate this city from the uh socialist and the um burdensome leadership that this governor and that this mayor have placed on this country"

No, not overthrow the government. Liberate the city.

[bernard11]

Liberate the city?

From its elected officials. Sounds like overthrowing the government to me.

And someone needs to tell Noem what socialism is, even though she's probably too stupid to understand it.

[bye]

Bernard, she is referring to similar things that have happened.
Lori Lightfoot, Latoya Cantrell, the trans official that didn't sound the tornado alert in STL.
Maybe the newspaper boy will deliver to the cave where you live

[Joe_dallas]

MollyGodiva 56 minutes ago
Flag Comment
Mute User
"The Trump administration has clearly said their goal is to use the US Military to overthrow the Government of California."

That is an absolute BS statement

[bernard11]

to liberate this city from the uh socialist and the um burdensome leadership that this governor and that this mayor have placed on this country"

Aside from being a really dumb statement (how have Newsom and Bass placed "burdensome leadership" on the whole country, and does she understand socialism as anything but a generic insult?) it sure sounds like she wants to overthrow some government.

[bye]

She is really the Mega Liar. I've watched her for some weeks. Unhinged.

[Bubba Jones]

And THIS is why we can't have nice things, and why we shouldn't accept the nonsense pretexts for federalizing the national guard.

[bye]

Bubba likes "we" but doesnt know 'we'

Trump Winning Swing Voters for LA Riot Response ...

Newsweek
https://www.newsweek.com › trump-winning-swing-vot...
3 days ago — Donald Trump LA riots swing voters. President Donald Trump speaks ... More Hispanics disapprove of Los Angeles protests than approve—Poll

[Longtobefree]

"The National Guard is the modern form of what the Constitution calls the "militia.""

Nope. The National Guard is a part of the US Army (or Air Force), which a state Governor is allowed to use in prescribed circumstances.

One of the distinctive characteristics of a militia is that they are civilians who use their own arms when responding to a call. Clearly this does not apply to the Guard.
Another is that a militia elects its own officers. Does not apply to the Guard.
Another is that a militia unit can place restrictions on its service, such as "we will serve until the harvest", or "we will serve in this geographic area only". The calling government can accept these limits, or refuse the service of the unit. Again, not the Guard.
Another overlooked aspect is that a militia can decide not to answer a call. This is why our founders preferred a militia to a standing Army, to tone down an ill considered military response. (Remember the sixties poster "Suppose they gave a war and no one came?)

[Bubba Jones]

When not activated, it is a state-based military force under the control of the governors. As a state force, the National Guard can trace its roots back to the militia of the various colonies, and thus is older than the United States.

https://www.nationalguard.mil/About-the-Guard/Army-National-Guard/FAQ/

[tylertusta]

Correct- when not in federal service it's a state militia.

However, an important thing to add is that the Guard is organized as a federal militia. It receives substantial training, financial, and logistical support from Congress and the US Military despite being under state control when not in federal service.

[Brett Bellmore]

I believe the Supreme court has actually ruled (In Perpich) that the National Guard are organized under Congress' power to raise armies, NOT the militia clause. It's a dual enrollment thing, while they ARE state militia, the federal government simultaneously enlists them in the federal Army, which takes precedence.

In fact, some states for this reason make a point of having state militia that are NOT national guard, just so that they can't be taken away and sent abroad so easily.

[Michael P]

One of the distinctive characteristics of a militia is that they are civilians who use their own arms when responding to a call. Clearly this does not apply to the Guard.
Another is that a militia elects its own officers. Does not apply to the Guard.
Another is that a militia unit can place restrictions on its service, such as "we will serve until the harvest", or "we will serve in this geographic area only". The calling government can accept these limits, or refuse the service of the unit. Again, not the Guard.

What authority do you base these claims on? 10 U.S. Code section 246 disagrees explicitly with you on all of this.

[NvEric]

A9 and A10

[Michael P]

Neither of those talk about the militia, much less support the specific claims that Longtobefree made.

[NvEric]

"Draft Beer, not Students"

[OpinionsVary]

If electing their own officers is a definitional characteristic of a Militia, why does the US Constitution say this:

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

How can the states be appointing Militia officers if you say they must be elected?

[Kazinski]

Some of that contradicts Article 1, Section 8:

"To provide for organizing, arming, and disciplining, the
Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to
the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the
discipline prescribed by Congress;"

The method Congress chose to arm the militia was to order them to provide their own weapons, and of course then followed with the second amendment to insure neither the states or national government could frustrate that.

[Longtobefree]

"That position was rejected by the majority of the Convention, who adopted instead the provisions quoted above allowing deployment of the militia to enforce federal law and suppress rebellion."

And Trump is using the military to (help) enforce federal law; specifically the immigration laws. His actions are authorized under Title 10, Section 12406 of the U.S. Code.

[Bubba Jones]

There is no rebellion.

The US has adequate law enforcement personnel to protect it's buildings and interests.

[Roger S]

So why did the LA mayor declare a curfew?

[bernard11]

If the mayor does something it proves Roger is right. If she does nothing it similarly proves Roger is right.

[Social Justice is neither]

Given your Leftist vocabulary and definition, this is insurrection and should be treated as such.

[bye]

Bubba, racks up yet another wrong statement !!!

BREAKING - The man seen distributing tens of thousands of dollars worth of face shields in Los Angeles to rioters has been identified as Alejandro Orellana, a known member of the Brown Berets, a radical Latino paramilitary group that are currently embedded in cities across the US

[Sarcastr0]

The conclusion: the notion that the Constitution's rules of "federalism" are offended by federal intervention absent gubernatorial request is contradicted by the words and history of the Constitution.
This is a strawman. No one is arguing the Insurrection Act is unconstitutional.

But a lot of the rest of the analysis looks like it reaches farther than that strawman - it appears to contemplate an uncabinned Article II inherent power to federalize national guard if there's violence in a state.

Among other things, that's quite the federal police power we just made.

[Bunny495]

From the OP:
"Whether President Trump's actions are justified as a matter of prudence may well be debated, but the notion that the Constitution's rules of "federalism" are offended by federal intervention absent gubernatorial request is contradicted by the words and history of the Constitution."

Not much question FDR did stuff "... contradicted by the words and history of the Constitution." like throwing American citizens in internment camps and while trying to pack the court is allowed by the constitution it is skating close to a contradiction.

But while ignoring the wisdom of Trump's action can be debated there seems to be little disagreement that those actions have produced a bonanza of still and video images for campaign ads.

[Sarcastr0]

But FDR is a tellingly fallacious argument.

[Bunny495]

why

[ReaderY]

The first question is who has the power to decide. The constitutional decider is Congress. The Constitution empowers Congress, not the President, to provide for calling out the militia to enforce Federal law. So the relevant question here is whether Congress’ will was complied with. It was not.

Congress chose to enact a law, 10 USC 12406, empowering the President to call forth the militia to suppress domestic violence that also covered several other federal uses of the militia, including use to enforce general federal law, in the same law with a common procedure for calling them. In passing this law, it imposed the constitutional domestic violence condition on all of those uses. Orders have to be issued through a state’s governor. Consistent with the constitutional limitation on the federalization of the militia to suppress domestic violence, it deliberately gave the state’s governor a choice of whether to consent and transmit the orders, or not consent and not transmit them.

The President did not comply with this requirement. Governor Newsom chose not to consent and not to transmit the orders, as is his right. That should have ended the matter. There were no valid orders validly transmitted. What the triops received were invalid orders, invalidly transmitted. They should not have obeyed them.

The question is not what Congress COULD do under the Constiturion. The question is what Congress DID. It just doesn’t matter if Congress could have enacted a different law separating the purposes out. Congress enacted the law it did. And Trump’s action was clearly ultra vires under it.

The Insurrection Act permits a President to call federal troops, but under a much more limited set of conditions. One of those conditions, used by President Eisenjower, was to prevent systematic violations of 14th Amendment civil rights. But nobody is suggesting that California or anyone else is violating anybody’s 14th Amendment civil rights. Another is a complete breakdown of civil society such that courts can’t function. But courts are operating perfectly well. Another is a rebellion against the federal government. But there is no rebellion, just a protest. And while a few hotheads have done scattered acts of violence, there is no systematic rebellion against the Federal government. Nobody is trying to get California to secede. Nobody is fomenting a coup. There are at most some efforts to impede a particular federal law by a few individuals. But the Insurrection Act does not permit using federal troops to enforce general federal law when courts are functioning and it’s a police matter, not a military one.

[William of Brooklyn]

Reader Y - Where do you place the postal example in your analysis? Clearly, there was no insurrection there either. Just a need to see federal laws enforced/executed. I would argue that the federal government has very significant police powers when it comes to enforcing federal law, whereas States have neither the power nor the requirement to enforce federal law (see Arizona v United States, 2012.). If civil unrest interferes with executing federal law, and a Governor is passive or actively resisting (as was the case with Faubus,) the federal government is not suddenly without power. The Judiciary is empowered to say what the law is, but not to determine whether an invasion, insurrection, or frustration of federal enforcement has happened. Clearly, Congress has the power to call out the militia, beyond any power of any Court to frustrate by definitional rulings, or simply arrogating to itself the determination of what the facts are. And when Congress, through a statute, gives that determination to a president, the Court has no role to play. And Courts also have an obligation to construe a statute as being constitutional if at all possible, so if a statute seems to give a veto to a State Governor over a power expressly reserved to the federal government, it can strike down the whole statute or it can interpret the interaction with the State as consultative but never as a supplication in hopes of authorization. That turns the Constitution on its head, and makes a nullity of both the Article I powers of Congress, the Article II duties of the president, and the Supremacy Clause.

[bye]

In our society, one is a citizen of their city , their county, their state, their country and the responsibility of police action goes from the bottom up , as it has done under Trump.

This was clear during the Civil War and the two World Wars.
IF your state does not do its job, the Feds MUST under law step in.

[ReaderY]

Only the people and officials of a state are empowered to say what the state’s job is. What a state’s job is is none of the federal government’s damn business.

We live in a federal Republic of sovereign states who have agreed to give up part but not all of their sovereignty to a limited central government. The hierarchical unitary state you speak of with a central government able to dictate to provincial officials what their job is is wholly foreign to our constitution and laws.

The federal government has no general police power for a reason.

[arpiniant1]

>> The delegates voted to empower Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasion<<

yup
Congress, not the idiot king