The Legal Limits of Deploying the National Guard in Unwilling Cities

President Donald Trump is testing the bounds of what the president can do with the National Guard. He’s sent troops to L.A. against California Gov. Gavin Newsom’s wishes, and to D.C. in absence of a clear specific emergency event. He’s now threatening to send troops to respond to crime in cities like Chicago and Baltimore, where state and local officials have said they do not need federal help. Recently, Trump issued an executive order calling to create a standing unit in the National Guard that would act as a “quick reaction force” trained and available to quell civil disturbances.

While it’s unusual for a president to send the National Guard into a state whose governor did not request help, Trump isn’t the first president to do it — in 1965, President Lyndon B. Johnson sent troops to Alabama to protect civil rights marchers. But Trump’s actions are drawing legal scrutiny, including a lawsuit from Newsom (the governor saw an initial legal victory in that case this week). The president has argued that his office grants him wide latitude to deal with what he has described as emergency conditions in cities across the country.

It will fall to the courts to decide if the president’s legal arguments hold water. But in the meantime, experts weigh in on these justifications, and what legal limits might exist on the president’s power to send guardsmen into cities and states whose governors have not asked for it.

‘The Furthest We’ve Seen an Administration Go’

So far, Trump’s most wide-ranging deployment of the guard has happened in Washington, D.C., which the president has said is suffering from a crime emergency. The president has more control over the National Guard in D.C. than in other cities. In the district, the secretary of defense — not any governor — is in command of the local National Guard. That’s significant in a few ways.

First, D.C.’s Code allows the commanding general of the guard to summon the troops for “drills, inspections, parades, escort, or other duties, as he may deem proper.” And presidents have at times interpreted “other duties” very broadly, says Scott Anderson, senior editor of Lawfare and fellow in Governance Studies at the Brookings Institution. Still, Trump’s use of National Guard troops in D.C. is “the furthest out I would say we've seen an administration go in terms of trying to justify its actions under these theories and legal interpretations.”

Trump may also try to justify deploying the guard under a piece of D.C Code that allows a president to deploy the National Guard to help enforce the laws when there is, or is threat of “a tumult, riot, mob, or a body of men acting together by force with attempt to commit a felony or to offer violence to persons or property” — so long as there’s been a request for help either from D.C.’s mayor or one of two federal officials. While some note that a “body of men” attempting to commit a crime isn’t hard to find in most cities, Anderson says the code suggests the need for an extreme event to trigger the enforcement.

“That’s just hard to line up with what’s happening [in D.C.] — what's happening is pretty standard street crime, of the type that exists in most major cities in the world, certainly in the United States,” Anderson says.

Secondly, because the federal government is in command of the D.C. Guard, it has a defense against accusations that it’s violating the Posse Comitatus Act, which prohibits the federal military from enforcing civilian law unless expressly authorized by Congress or the Constitution. The Trump administration can argue that it’s mobilized the troops in D.C. in their militia status — i.e., the equivalent of being summoned by a governor — and has not federalized them, even if the troops are reporting to the president either way, Anderson says. (States are permitted to have their National Guard troops enforce civilian law, although the practice is controversial.)

Even so, the guard in D.C. has so far avoided core law enforcement duties like arresting people or serving warrants, instead sticking to support roles like detaining people for police to arrest or providing security to cops serving warrants, Anderson says. That can help the administration avoid facing a legal challenge over whether the Posse Comitatus Act applies here — and thus avoid the risk of courts setting unfavorable legal precedents. “The result will be the president kind of gets away with what he wants, even though the legal authority to do so is never firmly resolved in his favor,” he says.

There has been some court movement: A federal judge ruled on Tuesday that the National Guard deployment in L.A. violated the Posse Comitatus Act. The president had invoked Title 10 of the U.S. Code on Armed Services to send troops there in June, to quell anti-Immigration and Customs Enforcement (ICE) protests. Title 10 says the executive can deploy National Guard forces against rebellion, threat of invasion or if unable to enforce federal laws with other forces. The judge found this justification lacking: “there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law,” the ruling states. But the ruling only applies to California, and the Trump administration says it will appeal.

Trump also appears to be trying to lay more legal groundwork for letting the D.C. Guard conduct policing. His new executive order calls for creating a unit within the D.C. National Guard focused on ensuring “public safety and order,” and he specifies they would be in militia status — not federalized.

Can Trump Send Guardsmen Into Other States?

Governors in other states have volunteered their troops to serve Trump’s policing mission in D.C. But it would be legally questionable for them to do so in another city that has not asked for help, where the federal government does not have the same kind of jurisdiction.

“To my knowledge, there has never been a deployment [of one state's National Guard troops] … into another state where the governor has not consented to their activities there,” Anderson says. “That raises constitutional questions because … [the Constitution] understood that the states had sovereign rights … And I think there’s a very, very plausible, potentially persuasive argument that that includes a right not to be invaded by your fellow states.”

Trump could try to justify having troops police cities by invoking the Insurrection Act, something he’s suggested but so far has not done. The Insurrection Act gives an exemption from the Posse Comitatus Act in situations where federal troops are needed to put down a rebellion, quell domestic violence or enforce civil rights.

Important in this debate is an 1827 case called Martin v. Mott that is often read as saying the president should be given a lot of deference to define what qualifies as a rebellion or other such qualifying event.

“Even with all that deference that doesn't mean anything the president says goes, it doesn't mean he can completely fabricate reality,” Anderson says.

However, in arguing that the federal takeover of troops in L.A. was justified under Title 10, Trump has pushed for a bolder reading of Martin v. Mott. He’s asserted it should be interpreted as saying the president has free rein to decide what counts as “danger of rebellion” and that the courts have no ability to second-guess him.

Trump has also promised to send troops to fight crime in Baltimore, calling it a “hellhole.” Mayor Brandon Scott pushed back, saying the city continues to work hard to reduce crime but “we do not need or want” the guard to help with that. Maryland Gov. Wes Moore, similarly, said using the National Guard for city policing is “theatrical and not sustainable.”

Chicago is also in the president’s sights — Trump has promised to send troops to combat violent crime whether or not the governor approves. And Gov. JB Pritzker doesn’t. Pritzker has insisted he would not ask for troops because violent crime is down and there is no emergency justifying it. Mayor Brandon Johnson says, similarly, “We do not want or need military occupation in our city. We do not want or need militarized immigration enforcement in our city.”

But Pritzker believes Trump is moving soon. He said in public comments Tuesday that he believes Texas National Guard members and ICE agents have arrived at a naval base and other federal properties near Chicago. He believes forces are preparing to enter the city and conduct raids on Latino communities targeting undocumented violent criminals. (Texas’ Gov. Greg Abbott’s administration reportedly disputes the comment on the Texas Guard.)

“The Trump plan is to use any excuse to deploy armed military personnel to Chicago," Pritzker said.