Trump’s memo activating the National Guard doesn’t specify L.A. It could apply anywhere and preemptively, legal expert says
“No president has ever federalized the National Guard for purposes of responding to potential future civil unrest anywhere in the country.”
- The White House memo federalizing National Guard troops in response to protests in Los Angeles this weekend doesn’t specify a city or state for their deployment. It also authorizes their activation in areas where protests “are occurring or are likely to occur.” A legal scholar said that means the memo could apply anywhere and preemptively.
President Donald Trump’s activation of California National Guard troops could go beyond Los Angeles and the unrest that took place there over the weekend.
The memo he issued on Saturday that federalized the National Guard in the wake of protests against his immigration raids doesn’t specify a city or state for their deployment.
It also authorizes the activation of the National Guard in areas where protests “are occurring or are likely to occur.”
According to Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, that means it could apply nationwide and even before any protests actually take place.
“No president has ever federalized the National Guard for purposes of responding to potential future civil unrest anywhere in the country,” she wrote Sunday in a thread on X. “Preemptive deployment is literally the opposite of deployment as a last resort. It would be a shocking abuse of power and the law.”
The White House didn’t immediately respond to a request for comment.
The memo invokes Title 10 of U.S. Code 12406 to task the Guard with temporarily protecting Immigration and Customs Enforcement agents and other government personnel performing federal functions.
That’s because the Posse Comitatus Act of 1878 largely prevents federal troops from engaging in civil law enforcement domestically, leaving the Guard with force-protection duties and other logistical support for ICE.
During Sunday’s protests in downtown Los Angeles, the Guard protected the federal building while the L.A. Police Department and the California Highway Patrol pushed demonstrators back and made arrests.
Still, Trump ordered the deployment despite objections from California Gov. Gavin Newsom, who said he is suing the administration and claimed it illegally sent in the troops.
There is an exception to the Posse Comitatus Act that would allow troops to take a more active role in law enforcement, but the Insurrection Act has not been invoked yet.
Nevertheless, Trump’s memo said members of the “regular Armed Forces” can be deployed as well to support the “protection of Federal functions and property.”
The Defense Department said on Sunday that 500 Marines at Twentynine Palms are in a “prepared to deploy status” in case they are needed.
When asked Sunday if he planned to send U.S. troops to Los Angeles, Trump replied, “We’re gonna have troops everywhere. We’re not going to let this happen to our country. We’re not going to let our country be torn apart like it was under Biden.”
The Brennan Center’s Goitein pointed out that Trump’s memo doesn’t cite a law that would authorize deployment of active-duty troops.
“The administration would likely claim an inherent constitutional right to protect federal personnel and property (in keeping with the memo’s language). But the Posse Comitatus requires ‘express’ authorization—not a claim of implied power,” she added.
“In short: Don’t let the absence of the words ‘Insurrection Act’ fool you. Trump has authorized the deployment of troops anywhere in the country where protests against ICE activity might occur. That is a huge red flag for democracy in the United States.”
This story was originally featured on Fortune.com
