​The L.A. Riots: A Couple of Chapters from an AP American Government Class

The L.A. Riots: A Couple of Chapters from an AP American Government Class

Federal Troops on U.S. Soil in Relation to Stuff Like the Law, History, and Federalism

I. Introduction: The Current Crisis as a Case Study

This week, a significant development in Los Angeles has brought critical questions about federal and state powers to the forefront. As protests over immigration enforcement intensified, President Trump deployed not only the National Guard but also 700 active-duty Marines. Crucially, these deployments reportedly occurred without a request from California's Governor Gavin Newsom, who has since filed a lawsuit calling the move "a blatant abuse of power."

This moment demands attention from professionals in public policy, law, and civic life. It raises urgent questions about the chain of command for the National Guard, the legality of deploying federal active-duty troops on U.S. soil for domestic purposes, and the constitutional implications when federal and state authorities clash. This article will provide a clear, principled breakdown of the laws, history, and legal precedents governing these actions.

II. The National Guard: Dual Nature and Authority

The National Guard is uniquely positioned in the U.S. military structure, functioning with a dual state and federal role. Understanding its historical evolution and current legal frameworks is essential to grasping the complexities of its deployment.

A. Historical Origins of the Militia and National Guard:

The concept of a state-based militia dates back to the Militia Act of 1792, which laid the groundwork for organizing state forces. Over time, the National Guard evolved through key legislative acts:

1. The Militia Act of 1903 (the "Dick Act") formalized the National Guard, integrating it more closely with the regular U.S. Army while retaining state control and federal funding. This act established a clear framework for federal support of state-organized militias.
2. The National Defense Act of 1916 further federalized the Guard, instituting "dual enlistment," where Guard members are simultaneously enlisted in their state militia and the U.S. Army or Air Force. This solidified the Guard's role as a state-controlled force and a federal reserve component.

B. Current Legal Frameworks for Activation:

The authority to activate the National Guard is governed by two primary sections of the U.S. Code:

1. Title 32, U.S. Code: State Active Duty (Governor's Authority)
2. Under Title 32, National Guard units operate under the command of their respective state governors. This is the most common form of activation for domestic purposes.
   1. Purpose: Governors typically deploy their Guard units during natural disasters (like hurricanes), civil unrest, and other state-level emergencies where additional support is needed.
   2. Chain of Command: The Governor serves as the Commander-in-Chief for these deployments.
   3. Funding: While often federally funded, the units remain under state operational control during these missions.
   4. Example: The deployment of the Missouri National Guard during the Ferguson protests in 2014, or numerous Guard activations for hurricane relief operations exemplify state-level control under Title 32.
3. Title 10, U.S. Code: Federalized Active Duty (President's Authority)
4. The President holds the power to "federalize" National Guard units, effectively integrating them into the active-duty military.
   1. Purpose: This authority is reserved for rare circumstances, including national emergencies, wartime operations, or specific federal missions that require a larger military force.
   2. Chain of Command: Once federalized, Guard units fall under the direct command of the President as Commander-in-Chief, becoming subject to the Uniform Code of Military Justice (UCMJ).
   3. Example: President Dwight D. Eisenhower's federalization of the Arkansas National Guard in 1957 to enforce school desegregation in Little Rock, or the large-scale federalization of Guard units for overseas deployments during conflicts like the Vietnam War, illustrate Title 10 authority.

C. The "Without Governor's Request" Element:

A critical distinction in the Los Angeles situation is the reported absence of a request from Governor Newsom for the deployment of the Marines and the federalized Guard. While federal support for states is often requested by the governor, the President does possess constitutional and statutory authority to deploy federal forces (including federalized National Guard or active-duty units) without a governor's consent, particularly in situations deemed "insurrection" or when federal laws cannot be enforced by civilian means. This potential presidential prerogative directly leads to the next area of legal consideration.

III. Federal Troops on U.S. Soil: The Posse Comitatus Act

The deployment of active-duty Marines in Los Angeles immediately raises questions about a cornerstone of American civil-military relations: the Posse Comitatus Act.

A. Definition and Purpose:

Enacted in 1878, the Posse Comitatus Act (18 U.S. Code § 1385) generally prohibits the use of the U.S. Army and Air Force (later extended to the Marine Corps) for domestic law enforcement purposes.

1. Prohibition: It prevents federal active-duty military forces from engaging in typical civilian police activities, such as making arrests, conducting searches, or seizing property, unless explicitly authorized by law.
2. Historical Context: The Act was a response to concerns about military interference in civilian affairs during the post-Civil War Reconstruction era, particularly the use of federal troops to enforce local laws.
3. Goal: Its fundamental purpose is to maintain a clear separation between the military and civilian law enforcement, safeguarding civil liberties and preventing the military from becoming a tool of domestic political control.

B. Scope and Limitations:

1. Who it Applies To: The Act primarily applies to the active-duty components of the U.S. Army, Air Force, and, by extension, the Marine Corps.
2. Who it Doesn't Apply To: It generally does not apply to the National Guard when operating under state active duty (Title 32). The Coast Guard and some specific naval functions are also explicitly exempt.
3. Exceptions: There are limited, specific exceptions to Posse Comitatus, typically when authorized by express statute (e.g., for specific support roles like drug interdiction or in extreme emergencies where civilian authorities cannot maintain order, which often falls under the Insurrection Act).

IV. The Insurrection Act: The Primary Exception to Posse Comitatus

While Posse Comitatus broadly restricts military involvement in domestic law enforcement, the Insurrection Act of 1807 provides the President with a powerful, albeit rarely used, exception.

A. Overview (10 U.S. Code §§ 251–255):

The Insurrection Act grants the President statutory authority to deploy military forces (including federalized National Guard or active-duty troops) for domestic law enforcement under specific, narrowly defined circumstances.

1. Conditions for Invocation: The President can deploy troops if:
   1. There is an "insurrection," "domestic violence," or "unlawful combinations" that obstruct federal law.
   2. A state is unable to protect its citizens' civil rights, and the federal government intervenes.
   3. State authorities are unable to suppress an insurrection or domestic violence that hinders federal law enforcement.
2. Procedural Requirements: Historically, invoking the Insurrection Act often involves a presidential proclamation ordering insurgents to disperse, followed by a formal declaration if the situation persists.

B. Historical Precedents of Invocation:

The Insurrection Act has been invoked only a handful of times throughout U.S. history, usually in moments of severe civil unrest or to enforce federal law when state authorities have failed:

1. Little Rock, 1957 (President Eisenhower): Deployed federal troops to enforce federal court orders for school desegregation against the Arkansas Governor's resistance.
2. Civil Rights Era (Presidents Kennedy and Johnson): Used troops to quell riots and protect civil rights activists in various instances.
3. 1992 Los Angeles Riots (President George H.W. Bush Sr.): Federal troops and a federalized National Guard were deployed to help restore order, significantly at the request of the California Governor.
4. Why It's Rare: Invoking the Insurrection Act has significant implications for political and civil liberties, as it represents a dramatic federal intervention into state affairs and the direct use of military power domestically.

C. Why it's Not Invoked in the Current LA Case (and why it matters):

In the current Los Angeles situation, despite President Trump's reported use of the term "insurrectionists" to describe protesters, the Insurrection Act has not yet been formally or officially invoked. This is a critical legal and procedural distinction. Without a formal invocation, the direct use of active-duty Marines for domestic law enforcement could be seen as violating the Posse Comitatus Act, creating a significant legal challenge for the administration.

V. Federalism and State Sovereignty: The Legal Challenge

The current events in Los Angeles highlight the intricate and often contested balance of power between the federal government and individual states, a core tenet of American federalism.

A. Constitutional Basis of Federalism:

The U.S. Constitution, particularly the 10th Amendment, reserves powers not delegated to the federal government, nor prohibited to the states, to the states respectively, or to the people. This establishes the states' primary role in maintaining public safety and order within their borders.

B. Governor Newsom's Lawsuit:

Governor Newsom's decision to sue the Trump administration underscores the profound nature of this federal-state conflict. California is reportedly arguing that:

1. The federalization of the National Guard was conducted without a lawful basis or proper consultation.
2. The deployment of active-duty Marines constitutes an illegal use of military forces for domestic policing, given the absence of an Insurrection Act invocation.
3. These federal actions represent a direct violation of state sovereignty and the foundational principles of the U.S. Constitution regarding state autonomy in policing and public order.
4. Potential Outcomes: The lawsuit could lead to a court injunction halting the deployments or, in the long term, a significant legal precedent clarifying the President's powers to deploy military forces domestically without state consent or a formal declaration of emergency.

C. Implications for the Balance of Power:

This legal battle is more than just a dispute over troops; it's a critical test of the constitutional checks and balances. The outcome could:

1. Redefine the boundaries of presidential authority in domestic crises.
2. Set a precedent for future federal interventions in state affairs.
3. Impact the delicate balance between national security concerns and the principle of civilian control over domestic law enforcement.

VI. Conclusion: Broader Implications for Democracy and Civil Liberties

The situation unfolding in Los Angeles serves as a poignant reminder that the mechanisms of governance, established over centuries, are not abstract concepts but living principles that shape our daily lives and the health of our democracy.

A. Risk of "Creeping Militarization" of Domestic Policing:

The deployment of active-duty military personnel in a domestic law enforcement capacity, especially without clear legal justification, raises concerns about a "creeping militarization" of internal security. This can erode public trust in military and civilian institutions and blur the lines between policing and warfare.

B. Importance of Rule of Law and Due Process:

At its heart, this crisis tests the rule of law. Adherence to established legal procedures, whether through proper activation protocols or the formal invocation of acts like the Insurrection Act, is crucial. Bypassing these procedures can undermine due process and create an environment where executive power is unchecked.

C. Public Understanding and Civic Engagement:

Ultimately, this isn't merely a legal or political dispute; it's a fundamental civics test for the nation. An informed citizenry, understanding the historical context and legal frameworks governing these actions, is essential for holding power accountable and safeguarding democratic norms. This moment calls for careful study and engagement to ensure that constitutional values and democratic principles remain paramount in the face of evolving challenges.