California Gov. Gavin Newsom (D) announced Monday that he was suing President Donald Trump and the U.S. Department of Defense over what he called the “illegal” federalization of the California National Guard.
But legal experts say Newsom is likely to lose, given the president’s broad authority over the armed forces.
The complaint admits, moreover, that there is at least one precedent, dating to the civil rights era, when the president had to federalize the National Guard to break the defiance of the Democrat-run Jim Crow South.
Newsom was responding to the president’s decision to mobilize thousands of National Guard troops — over the governor’s objections — to end riots against Immigration and Customs Enforcement (ICE) in Los Angeles.
Democrats have insisted that the riots are “peaceful”; that the problem is not widespread; and that Trump has escalated the tensions between law enforcement and radical activists by ordering the military to respond.
The lawsuit claims that Trump, despite being commander-in-chief of the country’s armed forces, invoked his authority inappropriately because he cited “a statute, 10 U.S.C. § 12406, that has been invoked on its own only once before and for highly unusual circumstances not presented here.” The text of the statute provides that orders to federalize the states’ National Guard “shall be issued through the governors of the States.”
The complaint blames ICE for “giv[ing] rise to protests” and says that ICE ignored local law enforcement (without noting that California, as a so-caled “sanctuary state,” bars local law enforcement from working with ICE in most cases). The complaint also minimizes the violence of the “protests,” omitting the fact that many participants attacked law enforcement officers and vandalized government buildings, among other targets.
“At no point in the past three days has there been a rebellion or an insurrection,” the lawsuit claims. It adds: “This is also the first time since 1965—when President Johnson sent troops toAlabama to protect civil rights demonstrators, under different federal authority—that a president has activated a State’s National Guard without a request from the State’s Governor.” The complaint does not engage with the parallels between that case and the present one — the most important of which is that Democrat-run states are, once again, claiming the authority to defy federal law in an area, i.e. immigration, where the federal government has jurisdiction.
The complaint also ignores other examples in which the National Guard was federalized, such as when President Dwight D. Eisenhower federalized the Guard to ensure the integration of Southern schools.
Newsom’s complaint concludes: “Already, fear and terror are spreading in communities across California as a result of Defendants’ actions.” It ignores the “fear and terror” of riots, ot criminal illegal aliens on the streets.
In a statement, Newsom added:
Donald Trump is creating fear and terror by failing to adhere to the U.S. Constitution and overstepping his authority. This is a manufactured crisis to allow him to take over a state militia, damaging the very foundation of our republic. Every governor, red or blue, should reject this outrageous overreach. This is beyond incompetence — this is him intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism. We will not let this stand.
Newsom appears unlikely to win. Even left-wing legal scholars “like Berkeley Law Dean Erwin have admitted that ‘Unfortunately, President Trump likely has the legal authority to do this,’” Jonathan Turley observed.
Turley noted that Trump also has many other sources of federal authority that would allow him to deploy the Guard or the U.S. military to quell the riots, including the Insurrection Act. He added that Democrats would have a hard time making the case against the idea that the riots are an “insurrection,” since they had used a broad definition of the term to target January 6 rioters, and because they have been stoking political tensions.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of Trump 2.0: The Most Dramatic ‘First 100 Days’ in Presidential History, available for Amazon Kindle. He is also the author of The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency, now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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