Los Angeles has been mired in unrest for three days now as protestors take to the streets to voice opposition to mass ICE arrests and deportations, and things took a more dramatic turn when President Donald Trump sent in the National Guard over the state's objections.
So, can the president legally federalize the National Guard, and what does it mean for states going forward?
California's Gov. Gavin Newsom plans to sue the federal government for sending in the National Guard without following the legal process. The state claims Trump violated the Constitution by deploying 2,000 soldiers to quell demonstrations against immigration crackdowns.
On what grounds is the president acting? Joseph Moreno, former federal prosecutor with the Department of Justice, now in private practice in Washington, D.C., tackled that question for Audacy, saying that it's heartbreaking to see any kind of service members deployed on U.S. soil.
"That's really not what we're meant for," he said. "And let's hope that this is settled peacefully."
He added that it's an instructive opportunity to understand the distinction between national guard and the U. S. military national guard troops, who report to the state governor through a military chain of command.
All 50 states plus each territory has a national guard that the governor can use more or less as he or she wants, including aiding law enforcement in disaster recovery efforts.
So whenever you hear that the president has activated National Guard troops that means they're from the military and operating under federal control, Moreno said, and there's limitations as to what they can do.
For instance, they cannot be used for law enforcement purposes, so they can't make arrests, and "they certainly should not be engaging citizens or anyone else," he added.
"They should really only be used in a very limited capacity like crowd control, keeping the peace, that sort of thing. But it's a very, very tricky situation, and it's really not one that we wanna see very often," Moreno said. "So let's hope that just kind of this, we get past this and figure out a better way. The immigration issue was such a hot button issue. Let's really hope that the states and the federal government can find a way to resolve this rather than what we're seeing here in Los Angeles."
Specifically, in legal terms, doesn't the president have to institute the Insurrection Act to kind of go over Gavin Newsom with the National Guard?
Moreno laid out how the president is using the authority to bring troops into Los Angeles. Basically there are troops considered Title 32 troops, meaning they are under the command and control of their state governor, but are paid and funded by the federal government. This differs from Title 10 active duty troops, which are under the control of the President. When a president goes over the governor's head and activates them in title 10 status, these are references to federal law, then the president is their commander in chief and can "use them any way he wants, of course, within the boundaries of the law."
So, did Trump deploy the National Guard as a scare tactic in California, a state with which he has many beefs?
"It's hard to get into the head of the president or the secretary of defense, right?" Moreno said. "I mean these kinds of situations. I do think that even under the best intentions, the perception of using any military forces on US territory is scary, right. It's unpleasant. That's really, we're intended to be outward facing, not inward facing. So I think that this should be used very sparingly. I hope it's not a scare tactic and I hope that we don't see this again."
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Pete Hegseth also said that he was mobilizing military at Camp Pendleton in case they were needed. Is that legal?
Moreno explained that it is possible to do under the same sorts of guidelines Trump is using for the National Guard. There are separate Naval National Guards and they fall under the Secretary of the Navy.
"So yeah, I guess it could be done in the same way that Army National Guard's troops, as well as Air Force, frankly, could also be used. So it's legal. I did see the social media posts from the Secretary and they're not, I'm mean, again, the last thing we need under difficult circumstances like this is to inflame and use rhetoric, particularly on social media, to kind of make things even worse than they are. So let's just, again, hope that things kind of settle down and this is a rarely, if ever, utilized option."
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