Mirasola’s View of the White House Memorandum on the Protection of the National Guard from Demonstration and Law Enforcement
Mirasola is worried that the political pressure will move beyond the protective power in order to cope with the upcoming protests.
In fact, the memorandum also says, “The Secretary of Defense shall consult with the Attorney General and the Secretary of Homeland Security prior to withdrawing any personnel from any location to which they are sent.”
And that may happen given, in Mirasola’s view, the presidential memorandum is extremely broad and, on its face, doesn’t appear limited to LA. In fact, “Los Angeles” is not explicitly stated in the memo’s text and the secretary of defense is given wide latitude to issue military protective activities.
“If we see the National Guard moving meaningfully beyond this more limited role, then we are certainly seeing an overstepping of the legal theory that’s really at the foundation of the deployment in LA,” Mirasola warned.
“If the court tries to put constraints on what [Trump] can do under these authorities, I would fully expect that then his next step would be to invoke the Insurrection Act,” Goitein said.
She said the courts had not had the chance to decide if the military can perform the law enforcement functions they are supposed to.
“Even when the Guard are federalized by the President, no matter how he puts it, they can protect the federal property and the federal personnel, but they can’t enforce the law at all,” he says.
This idea has been brought up many times by the executive branch, including during Trump’s first administration.
The First Time the President’s National Guard has Interacted with Protests against Immigration Raiders and the Insurrection Act of 1807
The Trump administration has responded to the weekend of protests against immigration raids by sending more Marines and National Guard troops to Los Angeles, causing heated exchanges with politicians in the state.
The Los Angeles police said that there has been some violence during the protests. Though, several officials have rebuffed the president’s intervention, saying they have it handled.
It is the first time since 1965 that a president called National Guard troops to respond to civil unrest without a governor’s official request for assistance, according to Elizabeth Goitein, the senior director of the Brennan Center’s Liberty and National Security Program.
More than 700 Marines based out of Twentynine Palms, Calif., have been called to Los Angeles and are expected to operate in the same capacity as the National Guard, an official confirmed to NPR on Monday.
If the President were to invoke the Insurrection Act of 1807, there could be an exception to this restriction. President Trump hasn’t taken that step yet.
The act has not yet been used by the White House in Los Angeles, despite Trump referring to protesters as “insurrectionists”. Trump said on Sunday that he wasn’t sure if the Insurrection Act would be invoked, though he left the chance for doing that in the future.
She said that it hadn’t been used without a state request since 1992. It was used by Bush when a jury acquitted police officers in the beating of a man.
That little-used provision is “10 U.S.C. 12406,” within Title 10 of the U.S. Code on Armed Services. It allows the president to deploy federal troops in instances of “a rebellion or danger of a rebellion” against the U.S. government.
Newsom’s office said the president exceeded his “Title 10 authority, not only because the takeover occurred without the consent or input of the Governor, as federal law requires, but also because it was unwarranted.”
Law Enforcement in the Guard: Los Angeles Police Chief Jim McDonnell Observes Posse Comitatus As A Defense of the National Security Council
Some legal experts say this could fall under the Guard’s role protecting federal employees. But if they’re drawn into directly aiding immigration enforcement, they risk violating Posse Comitatus.
Christopher Mirasola, an assistant professor at the University of Houston Law Center, says that the president is calling the military to LA because he implied an authority in the Constitution.
The protective power is a debated theory that says the president can use the military to protect federal functions, properties and persons.
Los Angeles Mayor Karen Bass said she feels the city is being used as a “test case for what happens when the federal government moves in and takes the authority away from the state, or away from local government.”
In Los Angeles, 50 people were arrested over the weekend. Los Angeles Police Chief Jim McDonnell said his department supports the right to assemble.
“Those who choose to incite violence, engage in vandalism or graffiti, and/or attack officers will be arrested,” he said Monday. “There’s no tolerance for criminal activity under the guise of protest.”
Some of the charges those arrested are facing include attempted murder with a Molotov cocktail, assault on a police officer, looting and failure to disperse, LAPD said. One of those arrested was David Huerta, the president of the Service Employees International Union California, who was released Monday afternoon.
He said the Los Angeles Police Department and its mutual aid partners had decades’ of experience managing large-scale public demonstrations.
The Los Angeles Police Department’s response to the riots of 1992: “I know how the Marines are going to come here, but what they don’t know”
On Saturday, President Trump federalized 2,000 National Guard troops for 60 days or whatever duration Defense Secretary Pete Hegseth finds appropriate. There are other branches of the armed forces that could be dispatched to support. He put in an order for more troops.
It was said that the Los Angeles Police Department responded to a federal request for assistance in two hours. He claims that the response to the protest took longer due to the traffic conditions and the use of tear gas by federal troops. The department arrived on the scene in 38 minutes.
The White House said in a statement, “Democrats like Gavin Newsom and [Los Angeles Mayor] Karen Bass should be thanking President Trump for stepping up and leading where they refused — and for ridding their streets of criminal illegal immigrant killers, rapists, and gangbangers.”
“This isn’t about public safety,” he said. “It’s about stroking a dangerous President’s ego. This is despicable. Pointless. And Disrespectful to our troops.
In response to Vice President Vance telling Newsom “do your job,” the governor said Monday, “Do YOUR job. We didn’t have a problem until Trump got involved. Rescind the order. Return control to California.”
This time, local and state officials weren’t interested in getting the military’s help, which is different than the riots of 1992. California has asked a federal court to block the government from using troops in LA outside of federal property. LA Mayor Karen Bass said Tuesday night that she doesn’t know what the Marines’ role will be.
Who knows? The bottom line is, we’re not told,” Bass said. “Basically we have to operate on rumor. 700 Marines are going to come here, that’s the rumor. I have no idea what they’re going to do when they get here.”
The Los Angeles Sheriff’s Office on Wednesday defended a National Guard member for possessing molotov cocktails with the LA sheriff’s department
Photos that were posted by the ICE appeared to show National Guard members protecting agents. Some National Guard members Wednesday have temporarily detained civilians in Los Angeles, according to The Associated Press, handing them over to law enforcement.
But not all federal-local relationships are under strain. Bill Essayli, the US attorney for the Central District of California, has charged two men for possession of molotov cocktails during protests in Paramount and LA. He praised local police and the LA sheriff’s department for their help in the investigation, and local law enforcement representatives at the press conference also thanked the feds.
Essayli said they have a good relationship with their law enforcement partners. At the same time, he stressed the fact that federal law enforcement would not be bound by state restrictions on immigration enforcement.
“Some people apparently have the notion that California really is a sanctuary from federal immigration laws,” Essayli said. “Federal laws are applicable here and they will be enforced, and nothing they have done to date has impacted our ability to carry out our immigration enforcement efforts.”