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PRESIDENT TRUMP'S DEPLOYMENT OF THE NATIONAL GUARD IS UNLAWFUL AND UNPRECEDENTED

By Norman Eisen, Joshua Kolb, and Diamond Brown

On Saturday, June 7, 2025, President Donald Trump issued a memorandum purportedly invoking 10 U.S.C. § 12406 to federalize at least 2,000 members of the National Guard to “temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.” This constituted an unprecedented and unlawful assertion of federal power.


10 U.S.C. § 12406 allows the president to “call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.” One of those three predicates — (1) “the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation”; (2) “there is a rebellion or danger of a rebellion against the authority of the Government of the United States”; or (3) “the President is unable with the regular forces to execute the laws of the United States” — must be present in order for the statute to be invoked.


In response to protests in California, the president claimed in his memorandum, “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.” He provided no substantiation to back up that assertion; it lacks a finding of the existence of a rebellion (it is written in the form of a conditional statement); and it is at odds with the reality on the ground in California at the time, where localized peaceful protests and stray irresponsible acts hardly constitute a rebellion.


Reflecting the traditional role of governors in calling out the Guard, the statute furthermore provides that "orders for these purposes shall be issued through the governors.” But Governor Newsom has issued no such order and indeed has objected to the deployment. Moreover, the federalization of the California National Guard failed to even comply with the terms of the presidential memorandum, which “direct[s] and delegat[s] actions as necessary for the Secretary of Defense to coordinate with the Governors of the States and the National Guard Bureau in identifying and ordering into Federal service the appropriate members and units of the National Guard under this authority.” No such coordination with Governor Newsom occurred.


This is not the first time President Trump has overstepped in calling on extraordinary presidential powers. Over the past two months, federal courts at the district and appellate level have ruled that the president failed to comply with constitutional due process requirements when removing Venezuelan detainees purportedly under authority of the Alien Enemies Act. Some have held that the president’s invocation of the Act was unlawful because it claimed without justification that the country had been invaded or was subject to a predatory incursion.


Nor do the circumstances allow the use of other presidential emergency powers. It is true that the president has a wide array of such powers that cover the military, land use, public health, trade, federal pay schedules, agriculture, transportation, communications, and criminal law. None apply here.


The presidential memorandum does not expressly authorize members of the federalized National Guard to engage in domestic law enforcement, which is prohibited by the Posse Comitatus Act absent a statutory or constitutional exception. The most significant exception is the Insurrection Act, which was not invoked in the presidential memorandum. Instead, the presidential memorandum relies upon 10 U.S.C. § 12406, which has never been used as an independent and exclusive authority to federalize the National Guard for domestic law enforcement. Previous invocations of this law for domestic law enforcement came in conjunction with proclamations invoking the Insurrection Act. The memorandum also appears to rely on an inherent constitutional authority to protect federal property and functions, but the executive branch’s claimed powers in this area have not been tested in the courts. Should the National Guard’s activities veer into domestic law enforcement–search, seizure, arrest, detention–these activities would arguably violate the Posse Comitatus Act. Moreover, the memorandum invokes 10 U.S.C. § 12406, and calls for utilization of the National Guard, in response to all forms of protests—not merely violence or riots, but even non-violent assemblies. The memorandum states that “protests or acts of violence” (emphasis added) that directly inhibit the execution of the laws, constitute a form of rebellion; furthermore, the language directing the potential preemptive use of military force refers only to “protests,” without even referencing violence.


Moreover, prior invocations of the Insurrection Act and federalization of the National Guard have specified the geographic area where troops are being deployed. All except for a few during Reconstruction and school desegregation have been at the request of or with the consent of the governor or state legislature for a specific purpose. Here, by contrast, the memorandum purports to direct the federalization of National Guard units prospectively at “locations where protests against [federal] functions are occurring or are likely to occur” (emphasis added). Thus, the memorandum seemingly attempts to authorize deployment of federalized National Guard troops anywhere across the country where there is a protest or there could be a protest, and without any request from the governor or state legislature.


Any invocation of the Insurrection Act, making use of the extremely broad grant of authority in 10 U.S.C. §§ 252 or 253, would be equally baseless under these circumstances. Section 252 allows the president to federalize the National Guard and use U.S. Armed Forces where he determines that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States or any State by the ordinary course of judicial proceedings.” Section 253(2), allows the president to use federalized National Guard units and the military to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” There is no indication that conditions in Los Angeles meet these requirements, and the president’s decision not to invoke the Insurrection Act could suggest that even he recognizes it is a bridge too far under the present conditions. Nevertheless we must remain vigilant lest it be wrongly utilized.


We gratefully acknowledge the assistance of Mary McCord of ICAP and of the other experts who also assisted.


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