California Suing Trump Over Federalizing National Guard 

California is suing President Donald Trump Monday over his move to federalize the state’s National Guard, Attorney General Rob Bonta (D) announced.

In an extreme move, Trump over the weekend bypassed California Gov. Gavin Newsom (D) to deploy at least 300 California National Guard troops to counter largely peaceful protests in Los Angeles over aggressive immigration raids in the city led by Immigration and Customs Enforcement (ICE).

Trump federalized the state troops by citing vague and rarely used federal powers in a presidential memorandum. It marked the first time since 1965 that a president activated a state’s National Guard force without a request from that state’s governor.

In announcing the lawsuit, Bonta said the state asked a court to “put a stop to the unlawful, unprecedented order.”

“Let me be clear: There is no invasion. There is no rebellion,” Bonta said in a statement. “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.” 

Bonta’s office said the lawsuit in part alleges that Trump’s federalization of the California National Guard deprives California of resources to protect itself and its citizens, and of critical responders in the event of a state emergency.

“This is exactly what Donald Trump wanted,” Newsom wrote in a social media post. “He flamed the fires and illegally acted to federalize the National Guard. The order he signed doesn’t just apply to CA. It will allow him to go into ANY STATE and do the same thing. We’re suing him,” he added. 

Under certain circumstances, presidents have the authority to federalize the National Guard without state approval. But it’s far from clear that the way Trump has done so in California is legal.

Under normal circumstances, the 1878 Posse Comitatus Act largely bars the federal government from using military personnel in civilian law enforcement. However, presidents have overridden Posse Comitatus around 30 times throughout U.S. history by invoking the Insurrection Act of 1807, one of the president’s most powerful emergency authorities.

The Insurrection Act allows the president to deploy military forces on American soil in times of crisis to help civilian authorities suppress insurrections, quell civil unrest or domestic violence and enforce the law.

Though the law limits how and when the president can deploy soldiers domestically, legal scholars across the ideological spectrum in recent years have cautioned that the act is overly broad and vague and could be easily abused by an authoritarian chief executive.

Trump did not invoke the Insurrection Act to federalize the California National Guard. Instead, through a presidential memorandum, Trump relied on part of Title 10, which codifies the legal basis for the roles, missions and organization of the armed forces, including the National Guard.

Specifically, he invoked 10 U.S.C. 12406, an emergency National Guard personnel mobilization authority. It allows the president to bring National Guard personnel onto federal active duty in three specific situations: when the country faces actual or threatened foreign invasion; actual or threatened rebellion against the U.S. government; or when the president is unable to execute U.S. laws with regular forces.

Trump’s memo attempts to justify invoking 10 U.S.C. 12406 using 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,” the memo reads. 

“I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including 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,” it continues.

However, 10 U.S.C. 12406 specifies that orders to the National Guard to repel the invasion, suppress the rebellion, or execute those laws, “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.”

California’s lawsuit also alleges that 10 U.S.C. 12406 requires that governors consent to federalization of the National Guard and that Newsom was not given the opportunity to do so prior to their deployment.

After the President plowed ahead with his order, the Governor sent a letter to Secretary Hegseth requesting that the Department of Defense rescind its unlawful deployment of troops in the state and return them to his command.

Legal scholars have noted that this specification makes 10 U.S.C. 12406 contradictory and unclear, as it doesn’t specify if this means governors can veto having guard forces mobilized into federal service or if a president can override a governor.

“If the law is intended to grant unilateral authority to the president, then this is an odd choice of words on the part of Congress. Is the statute contemplating a non-consenting governor issuing orders to their guard forces to mobilize into federal service? What if the governor refuses?” Joseph Nunn, counsel in the Brennan Center’s Liberty and National Security Program, wrote in 2020.

In addition to invoking 10 U.S.C. 12406, Trump’s memo cited “the authority vested in me as President by the Constitution and the laws of the United States of America,” suggesting that his administration may believe the president has inherent power to use troops in domestic law enforcement.

“It would be a mistake to focus too much on which statutory power is being used here. What matters is that Trump is federalizing the Guard for the purpose of policing Americans’ protest activity,” ‪Liza Goitein, a Brennan Center scholar on presidential emergency powers, wrote in a social media post over the weekend.

“That’s dangerous for both public safety and democracy,” Goitein added.

Since the beginning of his second term, Trump has taken steps to militarize law enforcement and get the military involved in domestic law enforcement.

In an executive order in April, Trump gave Attorney General Pam Bondi and Hegseth 90 days to determine “how military and national security assets, training, non-lethal capabilities, and personnel can most effectively be utilized to prevent crime.”

On the first day of his second term, Trump signed an executive order declaring a “national emergency” at the U.S.-Mexico border and ordered Departments of Defense and Homeland Security to publish a report that would consider whether he should invoke the Insurrection Act to “obtain complete operational control of the southern border.”

The departments eventually did not recommend that Trump invoke the Insurrection Act and deploy military forces on American soil to further crack down on immigration, though they left the option open.

This story has been updated with additional information.