Let’s get something straight right off the bat: I’m no attorney. I don’t pretend to be an attorney; heck, I’ve never even played one on TV. I wasn’t even particularly fond of that old show “LA Law” back in the day.
Ok, you get it. But I was a staff officer for a National Guard Infantry battalion at one point in my career. I know many of the ins and outs of how the Guard operates.
The Contested Federalization
In a move that’s sending constitutional lawyers into a caffeine-fueled frenzy, President Donald Trump has federalized the California National Guard — bypassing Governor Gavin Newsom entirely. The action, ostensibly aimed at quelling unrest tied to recent immigration raids and protests in Los Angeles, has triggered a high-stakes legal battle that could redefine the line between federal and state authority.
Roughly 4,000 National Guard troops, along with 700 active-duty Marines, were deployed into California under presidential orders. State officials, blindsided and livid, have called the move an illegal overreach. Governor Newsom, in tandem with Attorney General Rob Bonta, filed a federal lawsuit arguing this deployment violates the Tenth Amendment and misapplies a dusty old statute usually reserved for extraordinary domestic disorder.
The Tenth Amendment to the United States Constitution States: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The last time a president took this path without a governor’s blessing? 1965. President Lyndon B. Johnson sent the Guard into Alabama to protect civil rights marchers from state-sanctioned abuse. Trump’s use of the same authority in 2025, for vastly different reasons, has many asking whether the legal basis holds up — or whether we’re staring down a new precedent with teeth.
Let’s get something straight right off the bat: I’m no attorney. I don’t pretend to be an attorney; heck, I’ve never even played one on TV. I wasn’t even particularly fond of that old show “LA Law” back in the day.
Ok, you get it. But I was a staff officer for a National Guard Infantry battalion at one point in my career. I know many of the ins and outs of how the Guard operates.
The Contested Federalization
In a move that’s sending constitutional lawyers into a caffeine-fueled frenzy, President Donald Trump has federalized the California National Guard — bypassing Governor Gavin Newsom entirely. The action, ostensibly aimed at quelling unrest tied to recent immigration raids and protests in Los Angeles, has triggered a high-stakes legal battle that could redefine the line between federal and state authority.
Roughly 4,000 National Guard troops, along with 700 active-duty Marines, were deployed into California under presidential orders. State officials, blindsided and livid, have called the move an illegal overreach. Governor Newsom, in tandem with Attorney General Rob Bonta, filed a federal lawsuit arguing this deployment violates the Tenth Amendment and misapplies a dusty old statute usually reserved for extraordinary domestic disorder.
The Tenth Amendment to the United States Constitution States: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The last time a president took this path without a governor’s blessing? 1965. President Lyndon B. Johnson sent the Guard into Alabama to protect civil rights marchers from state-sanctioned abuse. Trump’s use of the same authority in 2025, for vastly different reasons, has many asking whether the legal basis holds up — or whether we’re staring down a new precedent with teeth.
The Legal Playbook
The bedrock legal authority for federalizing the Guard is the Insurrection Act of 1807. Under this statute, the president can deploy military forces — including the National Guard — to suppress rebellion, enforce federal law, or protect civil rights when local enforcement is unable or unwilling to do so. It’s a blunt instrument with a lot of gray areas, designed for emergencies — not policy disagreements.
As an aside, there has already been one death associated with this latest round of LA protests and riots. According to the Los Angeles Police Department, a man’s body was discovered early Tuesday morning on a sidewalk near West 3rd Street and Broadway, an area affected by recent looting and disturbances. The individual has not yet been identified, and police are investigating the circumstances, including any possible connection to the looted T-Mobile store at that intersection.
Trump’s legal team claims the Los Angeles unrest meets the criteria: organized protestors allegedly obstructed ICE operations and law enforcement. But Newsom’s legal challenge frames the protests as civil disobedience — not insurrection — and emphasizes that California had it under control before federal boots hit the ground. Basically, Newsom is saying that Trump, by sending in the National Guard, has made the situation worse.
But it does not have to be a “full on insurrection” before the president can send in the National Guard without the governor’s request or approval. Under 10 U.S.C. § 12406, the president may federalize the National Guard and deploy them to a state if there is an invasion, a rebellion or danger of a rebellion against the authority of the United States, or if the president is unable with regular forces to execute federal laws. The law allows for action in situations where there is a “rebellion or danger of a rebellion,” which is a lower threshold than an actual, ongoing insurrection.
Posse Comitatus
Let’s break this down without the legalese. The Posse Comitatus Act, passed way back in 1878, is a law designed to keep the federal military out of civilian law enforcement. Think of it as a firewall — one that stops the Army, Air Force, Navy, Marine Corps, and now even the Space Force — from doing things like arresting citizens, busting down doors, or cracking heads at protests. Unless Congress or the Constitution gives the green light, they’re supposed to stay out of police work.
Now here’s the twist: the National Guard is exempt from all this — but only when they’re under the control of the state governor. That’s what’s called Title 32 status. Under that setup, the Guard can respond to riots, natural disasters, or even help local law enforcement — no problem. But once the President federalizes them — switching them to Title 10 status — they become federal troops. And boom, Posse Comitatus restrictions kick in again.
Now let’s talk about what’s going down in Los Angeles. President Trump, without California Governor Gavin Newsom’s approval, ordered about 4,000 National Guard troops and 700 Marines into the city to respond to widespread unrest after ICE raids. The move is legally murky. It sidesteps the governor and rips open a constitutional can of worms. Under the Posse Comitatus Act, those troops can’t legally act like police officers — no arrests, no crowd control — unless one key thing happens: the Insurrection Act has to be invoked.
The Insurrection Act, a different law, lets the president use the military inside the U.S. during insurrections, rebellions, or when regular law enforcement can’t get the job done. If Trump officially invokes it, then the restrictions from Posse Comitatus are off the table, and the military can act as law enforcement. But as of now, that hasn’t officially happened — at least not on paper. Trump’s calling the protests “violent, insurrectionist mobs,” but unless he formally pulls the trigger on the Insurrection Act, the military is supposed to stay in the backseat — supporting federal agencies, maybe guarding buildings, but not wading into the streets to start arresting people.
Has the Insurrection Act ever been invoked? Yes, it has. About 30 times in US history, most recently by President George H.W. Bush in 1992 during the (irony) LA riots.
Here’s a quick way to think about the situation as it stands now in LA:
- Federal troops (like Marines or Army units): Not allowed to police civilians unless the Insurrection Act is invoked.
- National Guard under the state’s control: They can act as law enforcement with the governor’s approval, which he’s not giving.
- National Guard under federal control: They’re in the same boat as the Marines — hands off unless the Insurrection Act comes into play.
So what’s the bottom line? The Posse Comitatus Act exists to draw a line between military power and civilian policing. It’s not about slowing down a federal response — it’s about protecting citizens from a military that gets too involved in domestic affairs. And in LA right now, unless Trump formally uses the Insurrection Act, those troops aren’t supposed to be acting like riot cops. If they are, we’re on dangerous ground — legally, constitutionally, and historically.
So far, the administration is being coy on whether or not they intend to invoke the Insurrection Act, which leaves the legality of the deployment in a murky constitutional twilight zone.
Why This Time Feels Different
Historically, federalization of the National Guard without a governor’s consent has been rare — and typically justified by gross civil rights violations or full-scale riots. In 1992, for example, President George H.W. Bush federalized the Guard during the Rodney King riots — but with then-Republican Governor Pete Wilson’s consent.
This time? California’s elected leaders were bypassed entirely. The clash is about more than troops on the ground. It’s about political sovereignty, executive authority, and whether the White House can override a state simply because it disagrees with local law enforcement’s pace or politics.
If this stands unchallenged, it opens the door for future presidents to federalize troops for far less urgent reasons. Today, liberals say, it’s immigration protests; tomorrow, it could be climate demonstrations, gun rights rallies, or governors deemed “uncooperative.”
The Path Forward: What Could Change the Rules
Congress has flirted with the idea of reforming the Insurrection Act for years. Legal scholars and civil liberties groups argue the statute is too vague and too ripe for abuse. Any serious effort to reform would likely involve:
- Requiring congressional notification or approval within a certain timeframe.
- Clarifying what constitutes “insurrection” or “domestic violence.”
- Adding judicial review triggers for state-level challenges.
Absent these reforms, presidents will continue to operate with broad discretion — and lawsuits like California’s will be the only check on executive muscle-flexing.
What’s Next? A Legal Brawl with National Stakes
President Trump’s decision to federalize the California National Guard without state approval has sparked a battle not just between Washington and Sacramento — but between two competing visions of federal power.
Is this a necessary move to restore order? Or a constitutional gut punch wrapped in a uniform?
Either way, the precedent is being tested. And if history teaches us anything, it’s that once Washington grabs hold of power, it seldom lets go without a fight.
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