The law President Trump used to deploy the National Guard, and what might happen next

The National Guard and Marines deploy to Los Angeles, but their role is limited – for now.

President Trump ordered 2,000 members of the California National Guard to Los Angeles on June 7 in response to protests against U.S. Immigration and Customs Enforcement (ICE) officers conducting deportation raids in the city. They have been joined by hundreds of active duty Marines. Although the deployment is an escalation of local police and federal officers’ response to the street protests, Trump did not yet invoke measures that allow the troops to assist in law enforcement activities. For now, the troops will be limited to protecting federal personnel and property from attacks.

The Trump Administration’s order, issued shortly before the President attended an Ultimate Fighting Championship event in New Jersey, invoked 10 U.S.C. § 12406, which enables the President to call up the National Guard when “there is a rebellion or danger of a rebellion against the authority of the Government of the United States,” or he or she “is unable with the regular forces to execute the laws of the United States.” The Administration’s order states, ”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.”

The Administration cited the same part of U.S. Code in an Executive Order authorizing the deployment of troops to the U.S.-Mexico border in January. Before these instances, the only time a President has used this section of the U.S. Code to send federal troops to support federal law enforcement was when Richard Nixon ordered military forces to New York City during a postal workers strike in 1970.

On Monday, the Pentagon activated an additional 700 Marines from nearby Twentynine Palms to join the California National Guard units from the 79th Infantry Brigade out of San Diego. All troops are under the command of the U.S. Army Northern Command’s (NorthCom) Task Force 51, which typically responds to natural disasters in the continental U.S.

The unrest started when protestors assembled at a federal law enforcement center in Paramount after local residents noticed U.S. Customs and Border Protection personnel massing near a local Home Depot that morning. Federal officers responded to the initial protests with tear gas and flash-bang grenades, which escalated protests on nearby roads. Protests spread to U.S. Highway 101 and downtown Los Angeles at a municipal detention center. National Guard troops arrived the following day to reinforce the L.A. detention center, over the objections of California Governor Gavin Newsom.

He has filed suit disputing the legality of the deployment, noting the statute requires such orders “be issued through the governors of the States.”

Those troops will be limited to protecting the facility and federal civilians, not joining in immigration raids or arresting protestors, because their federalization places them under the coverage of the Posse Comitatus Act of 1878. It bars federal troops from joining in civilian law enforcement activities. What steps they can take to protect federal agents and property, however, is undefined. Northern Command noted that National Guard forces have been trained in “de-escalation, crowd control, and standing rules for the use of force.” What exactly the Marines will do is less clear beyond, as NorthCom says, inserting enough troops to “provide continuous coverage of the area in support of the lead federal agency.”

The President can navigate around the law enforcement prohibition by invoking the Insurrection Act. As we discussed when President Trump issued EO 14288 in May, Presidents have deployed federal troops fairly often via the Insurrection Act.

State governments can initiate the deployment of troops under the law by requesting assistance, as California Governor Pete Wilson did during the bloody 1992 during the Rodney King Riots in Los Angeles – the last time a President invoked the law. The law also allows the deployment of federal troops during “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.” Presidents have relied on this part of the law to act most often during the Civil Rights Movement, when segregationist state governments defied federal court orders, like President Dwight Eisenhower’s deployment of Army troops to Little Rock in 1957 and President Lyndon Johnson’s call up of active-duty and National Guard troops to protect the Montgomery to Selma march in 1965.

For now, in other words, the Trump Administration has taken the more limited option for enlisting federal troops in suppressing dissent and executing immigration raids. National security law expert Steve Vladeck speculates, however, that this modest response may simply create a justification for invoking the Insurrection Act after protests continue or escalate.