The President And The National Guard

0:07Not that I don't have the right to do anything I want to do. I'm the president of the United States. If I think our country's in danger, and it is in danger in these cities, I can do it. Donald Trump says the office of the president gives him the right to deploy the National Guard to states. He sent thousands of California National Guard members and U.S. Marines to protect federal agents during recent protests against his immigration crackdown in Los Angeles. Recently, U.S. District Judge Charles Breyer ruled that this violated the Posse Comitatus Act. Trump also used crime as a justification to send federal troops to Washington, D.C.

0:43That's despite the fact that violent crime is at a 30-year low in the district. Now he's turned his sights to cities like Chicago, where, according to data from the CBS News Chicago gun violence tracker, violent crime is also on the decline. The National Guard is comprised of more than 430 ,000 civilian soldiers. It's a part of the U.S. Armed Forces that is used to respond to domestic emergencies, like natural disasters and civil unrest. Trump is testing the bounds of what those domestic emergencies can be. The president signed an executive order that calls for a restructuring of the National Guard.

1:19It also asks the Secretary of Defense to create a rapid response force to be deployed to states for, quote, quelling civil disturbances and ensuring public safety. Today, we're taking a closer look at the National Guard and Trump's executive order. How does it interfere with the National Guard's mission and training. I'm Jen White. You're listening to the 1A Podcast. Stay with us. We've got a lot to get to.

1:46Let's get into the role of the National Guard with our guests. Max Rose is a senior advisor to the Vet Voice Foundation. That's a nonprofit that advocates for and empowers military veterans to become civic leaders. He's also a National Guard veteran and former Democratic representative for New York's 11th Congressional District. Max, welcome to 1A. Hey, thanks for having me. And joining me in studio is Tara Kopp. She's a military and national security reporter at The Washington Post. Tara, welcome. Hi, thank you for having me. We're also hearing from you. Jay emails as a 23-year police officer, federal agents are not trained in city policing.

2:22As a city officer, I'm required to be trained as a mental health officer, verbal de-escalation, use of less than lethal equipment. We're a body video camera. wear a badge and name tag, and identify myself by name and organization. Federal agents and National Guardsmen are not required by statute or law to do any of those things. Altara, President Trump signed an executive order saying that each state's National Guard unit would be, quote, resourced, trained, organized, and available to assist federal, state, and local law enforcement in quelling civil disturbances. What else does the executive order say?

2:57Okay. So thank you for having me today. I think actually it's key to jump into what this ruling in California might pose, not only for that executive order, but for the plans in Chicago. It's a 52-page decision by Judge Breyer, who found that the federalized troops that Trump sent to California actually took Cal Guard and federalized them, plus the Marines that he sent there, the activities that they were doing, even though they were not actually in most cases doing any sort of arrests or detaining, did violate the Posse Comitatus Act, which prohibits federalized troops from conducting law enforcement activities.

3:39So when the troops were sent, the military really emphasized, you know, they'll be in a standoff role. They might form a perimeter. And we saw this happen at a park in Los Angeles where there were military vehicles and troops kind of forming a perimeter around this park to allow the federal agents to do the arrest and detaining of illegal immigrants. And that was found to be by this ruling a violation of the Policy Comitatus Act, which I think is going to have a lot of ramifications for how troops, if they are used in Chicago or other cities, can be used. And so how does that ruling also bump up against this executive order from the president?

4:16So the president is trying to create like a a national reaction force out of his National Guard units from the states and resource them to where they can surge to a city if necessary, if there's a domestic disturbance. The states already do this for natural disasters. They all have partnerships with each other. So during hurricane season, you see this the most where all the states on the East Coast that, you know, tend to get hit frequently, they all have partnerships where they will send their resources, their high water vehicles, their troops, their supplies, if it looks like one of them is going to be more severely impacted.

4:52But this would expand upon that idea to actually create a military action force that could go into a city and quell a riot. This order could directly impact that because why would you send troops in to quell a riot if they can't form a perimeter and they can't arrest and detain without violating the Posse Comitatus Act? Max, I'm curious to hear your reaction to this executive order from the president and what it says about the purpose and training of the National Guard, especially when we're talking about the creation of new rapid response units. Well, look, I reject the argument that the National Guard and the military writ large isn't capable of accomplishing any mission set before it.

5:37We've seen the National Guard used over the course of the last five years for things like establishing COVID mass vaccination sites to Governor Kathy Hochul sending in the National Guard onto New York City subways. The issue here, though, is that the President of the United States is deploying the National Guard and the military for purely political reasons. If this were not political, we would see a national strategy focused on addressing crime that took into consideration that there are plenty of Republican-controlled jurisdictions that have very serious crime issues. Of course, that's not what's happening here, which opens up a whole slew of other possibilities for how the president could be allocated and deploying these resources for other political objectives.

6:30I think that's what is stressing people out and raising such incredible and justified alarm here. Well, and Max, just lay out the difference between National Guard troops and active duty troops. Well, at times there is no difference. What we have seen over the course of the last 20 years, due to the significant and escalating global obligations of the U.S. military, The National Guard has become operationalized in a way that's very unprecedented. Most National Guard units are deployed every three to five years from everywhere from the Middle East to East Asia to Africa. And under those circumstances, those National Guard units become under the control of combatant commanders and under the control ultimately of the Secretary of Defense and the President of the United States.

7:28They are federalized. The other role that National Guard play is when they report directly to the governor. And under those circumstances, the governor has the ability to deploy and activate those National Guard troops for everything from emergency snowstorms, terrorist attacks, and all the rest. However, whenever the president deems that it's within his or her jurisdiction to mobilize the National Guard, they have the right to do that for the purposes of the military. And the National Guard has always answered the call here. Just one last point, though, here. Your question actually hits on the weakness of the president's current proposal.

8:14There are 18 combat divisions in the Army as a whole, eight in the National Guard, 10 in the active duty. That's not a lot. And that's to meet deployments currently happening right now throughout the world. And so this idea that the Nationals are, it's like this infinite, easy button, unlimited resource where they're just sitting there, which is patently, patently false. We are taking away from our other responsibilities to fulfill these blatant political imperatives. Well, I want to turn to the difference between the president's deployment of the National Guard troop here in D.C. and what might possibly happen in other cities.

8:55Because California, for instance, is a state. Chicago, that's in Illinois, also a state. Washington, D.C. is not a state, the District of Columbia. So Tara, what legal limits are there around a president sending National Guard troops into a state without that state's approval or cooperation? Sure, and that's a great question. It actually gets at kind of the three categories of National Guard use. So there's National Guard directly under the state governor control. Then there's National Guard federalized under Title X by the president. And then in between is kind of this gray area where you can have, they're called Title 32 troops, and they are still under state control, but they are resourced by the federal government.

9:39And so in the District of Columbia, those troops are Title 32 troops in that because there's no governor in the District of Columbia, the president was actually able to ask for and approve himself. I'm going to send these troops and they're going to be under Title 32, which means that they're technically under state control. So they can do law enforcement if asked. Because National Guard under state control, the first category, they can do law enforcement. Title 32, they can do law enforcement. Title 10 cannot do law enforcement. So let's take Chicago. If the president decides that he wants to send National Guard troops from Republican-friendly states who are offering their troops and he wants to send them to Chicago, he's going to have to get the governor's permission to do that.

10:30And he cannot send Title 32 troops into Chicago without that consent. It will get wrapped up in the courts fairly quickly. He could try to send troops under Title X under his orders and send them to the city. They won't be able to do law enforcement, but you might see them kind of push the limits of what would be law enforcement activities in Chicago. They could be guarding a building and then maybe form a perimeter, although, like I said, this morning's case is really going to kind of limit what his options are in Chicago. When it comes to this rapid response force that the president's executive order calls for, Tara.

11:09Where would the staffing and resources come from? We heard Max say the National Guard is not an infinite resource. I've had multiple conversations over the last week about the strain that the Guard is already under. You know, we have active operations overseas. You have Guard units assisting with the weapons throughput to Ukraine. That's been one of the regular responsibilities. We still have troops in Syria. We still have troops in Iraq. Those are quite frequently National Guard units, and they have to plan in the rotation, the downtime. If you've all of a sudden added this new mission of thousands of troops, I mean, there were 4 ,000 sent to California.

11:46We don't know what the numbers that they're envisioning for Chicago or what they're thinking for this, you know, rapid reaction force. That is further strain. When the troops were sent, you know, there were 900 just from the D.C. Guard. There's about 2 ,200 total in the District of Columbia right now. Those are families that got the call and answered it, and someone was left at home. They missed their kid's first day at school. They've missed two weeks worth of work with their employer. This isn't something that is repeatable on and on before people say, I can't do this, and they get out. Max, I want you to take us inside the National Guard's training and work.

12:22How much of that focuses on supporting law enforcement, and how much of it focuses on other things the National Guard tends to respond to. Sure. Well, one just quick point regarding the question that you just asked. Because of the ways in which the National Guard has been operationalized post 9-11, the National Guard is no longer representative of society. The vast majority of the service members in the National Guard are law enforcement, emergency response, other different types of government employees. This is why often what happens is that when the National Guard is activated within a state for an emergency, they'll note you can't, if you're currently law enforcement or emergency response, please don't show up because then you're stealing from Peter to pay Paul.

13:17Weirdly and ironically, that's what would be happening on a national level Here, you'll be taking from other law enforcement departments and sending them somewhere else. It's one of the reasons why I see this overall plan as very political and unrealistic. What I would just tell you when it comes to the training of the National Guard, and this is the entire military, the training is based around core fundamentals of military tactics and operations but ultimately what the goal is of the military and they do this better than any other military in the world is to build a very flexible force that can respond to challenges and missions that are could be completely unforeseen it's one of the reasons why i kind of refuse to buy into this argument that the National Guard isn't capable of this mission.

14:15I don't think our service members are incapable of much. But if the president, again, were actually serious about addressing the crisis of crime in the entire country, he would have announced a plan to do so in places like Shreveport, Louisiana, in places like Little Rock, Arkansas, in places like Oklahoma City, all of which are under Republican control and are dealing with significant crime problems, but none of whom have been included in his plan thus far. We got this email from Stephen who says, what happens if a state's National Guard gets conflicting orders from the governor and the president?

14:58And I want to come to you first on this, Tara. So it wouldn't be the first time that that has happened. And in Little Rock, the last time that National Guard troops were deployed to get the schools open, the president actually went around the governor because the governor didn't want to deploy the guard and went straight to the adjutant general, the head of the guard troops, and said, get them going, get them to help open the schools. That wasn't litigated. And this was during the integration of schools? Exactly. Yeah. So, you know, it's been more than 50 years at this point. That wasn't litigated.

15:38We don't have an answer to how that would have resolved itself. So there's still a question of what if the president goes straight to the Illinois tag or what if he goes to another governor's adjutant general and says, activate your troops, send them. That's why I think that the issue will probably wrap up in the courts. I just wanted to make another point about what might happen in Chicago, what we might see besides the ICE agents. Today's ruling does kind of limit what options are open right now to the White House. But what we have not seen is use of the Insurrection Act at this point. And that would allow him to use federalized troops for law enforcement purposes if he decided to go that route.

16:22Still to come, what other legal challenges could Trump's executive order restructuring the National Guard face? And what does it tell us about his views on Presidential Authority. We'll be right back.

16:36Let's add another voice to our conversation on the National Guard. Elizabeth Goyteen is the Senior Director of the Liberty and National Security Program at the Brennan Center for Justice at the New York University School of Law. Elizabeth, welcome. Thanks very much for having me. So as we've been discussing today, U.S. District Judge Charles Breyer ruled that Trump's use of thousands of California National Guard members and U.S. Marines to protect federal agents during immigration protests violated the Posse Comitatus Act. His order goes into effect on Friday. He didn't order the immediate removal of those troops.

17:11About 250 U.S. Guardsmen remain. But, Elizabeth, I wanted to get your read of this decision from Judge Breyer. I think it's an incredibly important decision. The Posse Comitatus Act embodies a centuries-old principle in Anglo-American law against military involvement in domestic civilian affairs, particularly law enforcement. And this principle is a vital protection for individual liberty and democracy. If a leader can turn the army inward against the people, it can become a powerful tool of oppression. That's something we've seen in countries around the world throughout history. And, of course, it's something the founders of this nation understood very well.

17:50And regardless of the military's actions, their very presence on the streets where people are going about their lives, can have a chilling effect on the exercise of fundamental rights, including the right to protest. So that is why the Posse Comitatus Act is such an important law. What it does is it prohibits federal armed forces from engaging in domestic law enforcement activities unless expressly authorized by Congress or the Constitution. As it turns out, the Constitution doesn't actually give the president any express powers to use the military for law enforcement. So in practice, the law requires a statutory exception.

18:29What we saw in Los Angeles was National Guard forces being federalized and active duty troops being deployed and engaging in actions that, according to case law interpreting the Posse Comitatus Act, are violations of the act. Things like temporarily detaining civilians. When the military lays hands on a civilian, that triggers the Posse Comitatus Act. Now, the administration argued in court many things. The administration argued that the Posse Comitatus Act doesn't provide for any kind of civil remedy. It is only a criminal statute. The only remedy is for this administration to prosecute, I guess, itself.

19:11The administration also argued that the Posse Comitatus Act doesn't apply when the military is engaged in protecting federal property or functions. It argued that the conduct of the military didn't rise to the level that would violate the Posse Comitatus. So many, many arguments. And the district court rejected all of them. And it found that this was a violation of the Posse Comitatus Act, that the court had the power to enjoin these violations going forward. So that is an extraordinarily important ruling. One of the things I should say about the ruling is that the Posse Comitatus Act is concerned with preventing misuse of the military by the president or other federal actors.

20:00And ordinarily, as a default, National Guard forces in every state and federal territory other than D.C. operate under the command and control of the governor. The Posse Comitatus Act wouldn't apply to those forces unless and until they're called into federal service, at which point command and control shifts from the governor to the president. The Guard was federalized in Los Angeles. It has not been federalized in Washington, D.C. Well, Max, I want to turn to some warnings that came from U.S. Army officials about their deployment to Los Angeles. This is according to a new internal document disclosed during the trial between California and the Trump administration.

20:36Army officials found that using federal troops to aid in Trump's immigration crackdown posed quote-unquote extremely high risk to civilians, troops, and the military's reputation. What does that tell you about how the military is thinking through these assignments? I think what the military very correctly understands is that anytime they are deployed domestically, they're one small step or one small mistake away from patalyzing massive ruptures in society. Just you think about one 19-year-old, one 20-year-old young soldier making a mistake in what is already a chaotic, scary, and intense situation where there is violence perpetrated against a civilian.

21:31This has happened in this country before. We all remember and have read about Kent State, for instance. So that's what the military is referring to. This is what the military experienced in Iraq and Afghanistan on actually a lesser level, where we saw that I experienced this as a young infantry officer in Afghanistan, where you knew that one mistake that you made or that your soldiers made could have consequences on the geopolitical level nationally as well as globally. And the military is very correct to note this threat and danger regarding the domestic deployment of troops. Well, Tara, I want to return to the Insurrection Act.

22:12In 2020, President Trump toyed with the idea of using the Insurrection Act to tamp down protests over the police murder of George Floyd in Minneapolis. is. How has the Insurrection Act been brought up during this second Trump administration? It was brought up during his very first day in office. In one of his executive orders, he directed the defense secretary to begin looking at the possibilities of using the Insurrection Act. So this has been on their mind since day one that this might be a tool that they could use. It would have to meet one of probably three standards, whether the governor approves it to suppress an insurrection.

22:50It does require state consent in that instance, but there are two other options under the Insurrection Act where he could get around that. He could use the military to suppress it in a state of emergency. And you have experts on here that can go through this in far better detail than I can, but they've been looking at ways to be able to activate the military domestically since day one, and I think that's something that's important to remember. When we talk about this state of emergency threshold, Elizabeth, tell us the rules around that. Who gets to decide what's a state of emergency? Well, the Insurrection Act actually doesn't use the term emergency, although the conditions that it puts forth are very much what we would think of as emergency conditions.

23:38So it does allow the president to federalize the Guard and deploy active duty troops when a state asks for help putting down an insurrection, as Tara mentioned. But it also applies when there are various types of interference with federal laws or with state laws that protect the constitutional rights of classes of people, basically civil rights laws. And those types of interference include obstruction, rebellion against the authority of the U.S., domestic violence, and other emergency-type situations. But there's no need for the president to formally declare an emergency. He just has to invoke the law.

24:17One would hope that as an exception to such an important rule that the Insurrection Act would be narrowly and carefully drawn. But unfortunately, the law is written in vague, antiquated terms that provide very few clear constraints. And the constraints that exist are not that easy to enforce. Earlier versions of the law actually required judicial sign-off before deploying troops, and they put time limits on using troops for law enforcement without congressional approval. But these safeguards were stripped out of later versions of the bill. So the only way for Congress to intervene if the president is misusing the law is to basically pass another law.

24:55And the Supreme Court has held that the decision whether or not to invoke the act is generally not reviewable by the courts, although there are some potential exceptions. Max, I'd love your perspective as well as someone who's served in the National Guard. What discussions and training did you all receive around the possible use of the Insurrection Act? Well, there's no Insurrection Act training manual. But I do think that the most important training that the military receives at the National Guard level or active duty is the training from non-commissioned officers at the squad and platoon level about using your mind and being a free thinker and understanding that your responsibilities could not be more significant.

25:53Now, in the run-up to any specific mission, whether that be emergency response or whether that be a deployment overseas, every National Guard troop under their commander has the responsibility and the authority and the resources to do specific training. And it's outside of my purview to say whether or not that is happening in these individual levels. But one of the most important things that the National Guard would be doing under any of these missions is support for local and state authorities, basically trying to relieve their logistical burden, their administrative burden, so that others could be at the front.

26:37That's when this works the best way. Now, of course, when Donald Trump and his administration are refusing to heed the concerns of those very governors and local authorities who are saying, we don't need you, we don't want you, that completely takes that level of coordination and partnership off the table. That's what is such so scary here and makes this such a wasteful allocation of resources in what is ultimately a political endeavor, not a security one. Ken emails to ask, can the Trump administration appeal Judge Breyer's ruling all the way up to the Supreme Court? And can the administration continue to deploy the Guard to the Blue Cities until a final ruling from the court?

27:20Elizabeth, I'll come to you on that. The administration can appeal the ruling, and I expect the administration will appeal the ruling. It should go, in the first instance, to the Ninth Circuit. We might see the administration try to do an emergency appeal to the Supreme Court. And whether or not the administration can do this in other blue cities will depend on what the courts in those cities hold. So the decision of the court in San Francisco does not bind the conduct of the administration in other states, in other jurisdictions. The Supreme Court has held that nationwide injunctions are not permissible, so that injunction applies only in that jurisdiction.