National Guard or Political Weapon?

0:00Thinking about this as, you know, kind of a new norm is particularly disturbing because that it would lead to the possibility of just having, you know, kind of continuous deployment of the National Guard. And, you know, if the Insurrection Act is used, other military throughout the United States. And already there's been the prospect floated of having the National Guard monitor elections in different locales. So I think that the presumption of regularity is really under threat.

0:31This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. Today, I'm fortunate to be joined by my colleague, Bernadette Myler. Bernie is the Carl and Sheila Spaeth Professor of Law, and she's also the Associate Dean for Research and Intellectual Life here at the university. When we think of the National Guard, we think of them showing up when there are disasters. We think of them deploying to foreign countries.

1:10I mean, we know a lot of people in the National Guard who have been overseas repeatedly over the last several decades and the like. But one of the things we don't think a lot about, or at least we haven't in recent years, is the National Guard being called into federal service. And there's a provision of the U.S. Code, 10 U.S. Code, Section 12406, that says that whenever the United States is invaded or is in danger of invasion by a foreign nation, or there's a rebellion or a danger of rebellion against the government of the United States, or the president can't execute the laws of the United States with the regular forces, He can call into federal service members and units of the National Guard of any state.

1:53And one of the things we've been seeing recently is President Trump deploying this power in a way that I don't think we've seen at all really since maybe the civil rights era. And Bernie, you've been looking at this, and I'd love to kind of just talk through with you what's happening now, both I think in California and in Illinois, and how we find ourselves here and what the law is. So welcome to the show, Bernie. Thanks so much. I'm really glad to be here discussing this with you. Yeah. I mean, the last time you were here, it was all about pardoning, the pardoning power, which you have a wonderful book on called Theaters of Pardoning, and talking about the extent to which Donald Trump could be pardoned or the extent to which Donald Trump might pardon others.

2:36And now we're, I think, seeing some of the offshoots of the fact that not only does Donald Trump have these huge powers, but he doesn't have to worry anymore about a lot of the kinds of constraints that we've generally thought presidents operated under. Absolutely. I mean, so I think you're in part alluding to the backdrop of this, which is the case involving presidential immunity that was decided by the Supreme Court recently, that said that, you know, there is immunity for president acts committed in office, official acts in office. And so I think that part of the fact that Trump is immune for official acts means that he might be unleashing more powers that are potentially questionable at this point in time.

3:24And, you know, actually, there's another, I think, offshoot of the pardon power involved here, which is that the National Guard at this point is being used to support the work of ICE officials and of immigration enforcement. So being used to protect federal officials in that way and bolster operations. But there's also a sense that potentially anyone who violates civil rights in the process of doing that could also be able to be pardoned, even if they might be prosecuted by a future administration, given the breadth of the pardon power today. Yeah, so I want to get back to that question of what can be done about violations of people's civil rights by the folks who are being called up.

4:08But I want to start with one thing you just said about the kind of starting point for a lot of this. There are two different things that seem to be going on. One is, as you kind of alluded to, this idea that we have Operation Midway Blitz in Illinois and a similar operation in Los Angeles. And those were designed to do what? The initial operations, which are by ICE officials, I take it. Absolutely. Right. So the initial operations were designed to ramp up enforcement of immigration violations, enforcement against those who are considered to have violated immigration provisions and to be illegally in the country by the administration and also So Portland has also been subject to this as well.

4:57And I think a lot of the rhetoric surrounding these operations, the Midway Blitz and the other operations, has been about targeting democratic cities that are perceived to be harboring illegal immigrants. And so I think that it's been very clearly targeted at particular cities that seem to be democratically oriented for additional immigration enforcement. Yeah. So you've got these cities and a kind of change in immigration enforcement in which, you know, I remember them doing immigration raids, ice aid raids and the like at meatpacking plants and like, but now they seem to be doing them right in the middle of cities.

5:40And these are cities where a large number of the citizens who live in these cities, people who are entirely entitled to be here, object to the raids. And so, for example, you have demonstrators, or you have various groups that show up at Home Depot lots and the like to blow whistles when they see ICE agents coming. And also you have a kind of change in how ICE is enforcing things. And then you have some reaction by people beyond the people who are the actual targets of these ICE raids. But you have police departments in these cities, right? Absolutely. And so, you know, you're referring to a number of different kinds of protests or other actions by locals in these cities who are objecting to the ICE enforcement actions.

6:29And one thing that's been noteworthy in the California context is that not only have local police departments said that they're absolutely sufficient to deal with any problems that might come up. There was some violence in Los Angeles, but the police in Los Angeles said that they were handling it just fine. And then also actually Governor Newsom has said that the state is perfectly fine on its own without the deployment of the National Guard. So this made the deployment of the National Guard in California even more unusual than it would otherwise have been because of the substance. Because in general, when the National Guard is deployed or federalized, it's with the consent of the governor of the particular state involved.

7:13And so it was really quite surprising and shocking that President Trump decided to deploy the National Guard without even alerting Governor Newsom when he did it in Los Angeles. Yeah. And that raises something that I think probably a lot of our listeners don't realize, which is although it's called the National Guard, it's generally under the command of the governor of a particular state. I mean, the National Guard, and this goes back to your work as a kind of legal historian, is the kind of successor to the militias that we had at the time of the framing, which were not designed to be a national standing army in some sense, but were designed to be under local control.

7:54Absolutely. Yes. And so that was exactly the purpose of the militias, which became converted into the National Guard. So really, they're local bodies. And another really kind of striking episode here is the use of the Texas National Guard outside of Texas. So deploying the Texas National Guard to Illinois, for example, and threatening the deployment of the Texas National Guard in other venues as well. So not only is there this kind of contravention of the respect for state sovereignty that happens by not consulting with the governor or other political entity within a particular state where the Guard is being deployed.

8:38But there's also this threat of, you know, basically the invasion of one state by another, and the use of the National Guard from or the militia, you know, the inherited militia of one state against another state. Yeah, I mean, generally, and you just pointed to this generally, we wouldn't think that the Texas National Guard would go into Illinois unless the governor of Illinois asked them there. I mean, we've had some huge disasters in America, you know, Hurricane Katrina and the like, I believe National Guardsmen and telephone linemen and, you know, state police came in from other states because of the just the sheer magnitude of the threat.

9:17But here, you know, if the president hadn't federalized the National Guard, we'd all understand that if Texas sends his National Guard to Illinois. That's an invasion. Absolutely. Absolutely. Yeah. And so here we have the president federalizing the National Guard and presumably bringing in National Guardsmen from Texas because he's under some doubt as to whether National Guardsmen from Illinois will perform what he wants them to perform. Absolutely. Yes. So the president can only do this if I understand the statute correctly, if there is an invasion or a rebellion or he's unable to enforce the law, and who decides whether there's an invasion, a rebellion, or an inability to enforce the law?

10:08Well, that's the main crux of the ongoing legal battles, both in California and in Illinois, and which have reached the Supreme Court already. So the main provision that the administration is falling back on here is this idea that the president is unable to execute the laws with his normal forces because of the threat of violence against ICE officials in these various locations. So the Ninth Circuit in California, or a panel of the Ninth Circuit, rendered a pretty deferential decision towards the president in saying that really the president gets a lot of deference in determining whether the regular forces are able to execute the laws or not now.

10:55So the Ninth Circuit said that the president's determination, as long as it reflects a colorable assessment of the facts in the law within a range of honest judgment, is going to be allowed to stand. Now, what does that mean exactly? What is the range of honest judgment? And then the Seventh Circuit also was fairly deferential, but not as deferential with respect to the meaning of the statute or what constitutes a rebellion or what constitutes the inability to execute the law. So I think that so far, the circuit courts have granted some deference, but not entire deference to the presidential determination of necessity.

11:36And there's been a lot of back and forth about whether that deference should be more in terms of kind of the facts on the ground or more in terms of the legal standard at issue. Yeah. I mean, this is one of those things that for generations, we've had something that's called the presumption of regularity, which is when the government acts, it's acting honestly on the up and up. It's actually considering the things it's supposed to consider. It's not considering the things it's not supposed to consider. And one question I have for you is like, how long are we going to have the presumption of regularity with this administration?

12:16I think that's a great question. You know, I would hope that we can retain it, but it is difficult, especially when decisions don't seem to be adequately explained or explained in ways that are consistent with earlier practice, right? So even if the president were to articulate a very broad understanding here of the inability to execute the law with regular forces, that understanding wouldn't at all be consistent with past practice over the past several hundred years. And so thinking about this as, you know, kind of a new norm is particularly disturbing because that it would lead to the possibility of just having, you know, kind of continuous deployment of the National Guard.

13:01And if the Insurrection Act is used, other military throughout the United States. And already there's been the prospect floated of having the National Guard monitor elections in different locales. So I think that the presumption of regularity is really under threat quite significantly at the moment. Yeah. I mean, the idea of having the National Guard monitoring elections, where does that come from? So it's, you know, one could imagine in certain circumstances. So one time when the military was used under the Insurrection Act, and that, you know, in which the National Guard has also been used, was in terms of enforcing civil rights during the civil rights movement.

13:43So when there were efforts to prevent black children from going to school and there was armed opposition on the part of states, then the military was called in to enforce civil rights against resisting states. So, you know, that's one example. If, for example, a state had said that they were just going to nullify an election, perhaps there would be a role for the National Guard in that context. But that gets back to this question of what the trigger is, right? Right. So if there's no evidence that there is any inability to enforce any federal law with respect to elections, then what would possibly justify the use of the National Guard in that context?

14:27Of course, it has the function of intimidating a lot of voters. So that would be, you know, perhaps the benefit for those who are trying to suppress, you know, kind of electoral turnout. But there's no legitimate justification if there is no evidence of violation of the laws. Well, and there's been a statute that's been around for probably more than a century at this point that essentially says that no officer of the army or the navy, and obviously they amended it to add in the Air Force, although they don't directly say National Guard as well, is supposed to interfere in any way with elections because it's such an ingrained part of American law and kind of the background assumptions of American law that the military is for fighting overseas, not for fighting U.S.

15:18citizens on U.S. soil. Absolutely. And I would just raise here also the importance of the Pasi Comitatas Act, which is another prohibition on the use of the military for domestic law enforcement purposes. And that's been around since 1878. And that statute specifies that only if Congress very precisely permits the use of the military in a particular context for domestic law enforcement, can it be used? So that statute is sort of in the background, both of the deployment of the National Guard and also of the possibility that Trump has floated a few times of invoking the Insurrection Act. And I think that - Yeah, could you just stop there for a second, explain Pasi Comitatis Act and the Insurrection Act, which are, Pasi Comitatis is not Latin for insurrection.

16:12So maybe separate those two out for our listeners so that they have a sense of what's going on here. Yeah. So the Pasi Comitatis Act comes up in the late 19th century as, you know, because there was a lot of discussion of the use of the military for domestic law enforcement in the aftermath of Reconstruction, and there was resistance against that to some extent. And so Congress passes this Pasi Comitados Act saying, look, you can't use the military for purposes of domestic law enforcement unless we specifically authorize it. So that general prohibition is kind of in the background here. And then we - And we don't have, I just want to stop you there for a second.

16:57We don't at this moment have a congressional authorization for the president to use the military for domestic law enforcement? No, the only law that would permit that is the Insurrection Act, which is something that has been around in different forms since early on in the U.S. history. But I think it has to be understood in relation to the Posse Comitatus Act. And the Insurrection Act, what the Insurrection Act does allow is for the use of the militia and armed forces to enforce federal authority. So part of it says that, you know, it also has the language of rebellion, or it says, if it's impracticable to enforce the laws, then the president can call into federal service, the militia, and use it as necessary to enforce the laws or suppress the rebellion.

17:49Now, one noteworthy thing about the Insurrection Act is that it requires a proclamation before using it. So if the president were to decide that the Insurrection Act had to be used, there would be a requirement that he make a proclamation to everyone in the area to disperse if they were engaged in what was thought of as insurrection. So there is this kind of prerequisite for using it. And insurrection, I mean, one thing, I'm now thinking back to January 6th. And, you know, one of the interesting things there is that the charges that were brought against people there were not insurrection charges.

18:31And if that wasn't an insurrection, is anything that's going on today even remotely an insurrection? Yeah, I mean, so I think even the administration doesn't think that that's a very plausible argument because they've only made it as a kind of secondary argument when going to court to defend these various actions. So I think that it would more be the necessity to enforce the laws, right? So that somehow law enforcement is not occurring properly, and therefore, it's necessary to use the military to enforce the laws. But then I think that's where we get back to this question of who decides that and the kind of excessive deference that some courts have granted to the presidential determination of whether there's a problem currently with enforcing the laws.

19:23I think that, you know, in light of the fact that there is this Posse Comitatus Act that prohibits explicitly the use of the military for domestic law enforcement, courts really should read the Insurrection Act narrowly in relation to that, because courts have to decide when the Insurrection Act, you know, winds up being incompatible with provisions of the Posse Comitatus Act, or when the authorization provided by the Insurrection Act is insufficient to override the Posse Comitatus Act. And I think that this goes back to an important kind of Supreme Court decision, the Youngstown-Steel case. And in that context, President Truman had taken over the steel mills, claiming a kind of emergency wartime authority.

20:13And what happened there is that the court said, no, you know, we don't think that Congress has really authorized what you're doing. In fact, there are ways in which it has not authorized what you're doing. And in particular, also, the use of wartime powers domestically is very different than the use of wartime powers abroad. So we have to think more narrowly about the use of wartime powers when they're happening within the country. Yeah, I mean, it's interesting also that the president seems to be taking kind of the metaphorical idea of war on X to be literally a war on something. So, you know, we've talked about, you know, the war on poverty, the, you know, the war on drugs and the like.

20:57And what he's done so far, and this may be taking us a little further afield, but is to say, for example, that a gang has invaded the United States and therefore we're entitled to engage in war powers, that there are drug smugglers on the high seas and we're entitled to blast them out of the water and the like. And so he seems to be blurring the line between the things that are traditionally military exercises and the things that aren't. I mean, the kind of discussion where he said he thought it'd be useful to train American troops by having them go into American cities. Absolutely. Yeah, I think it's definitely blurring that I, you know, one precedent might be the war on terror, where, again, we had a sense of non state actors being involved.

21:47So similarly to the gangs that Trump is is signaling. And also in that context, there was, you know, the use of kind of drone strikes or other things abroad, maybe similarly to the use of strikes on these boats. in the context of Venezuela. But I think you're absolutely right that the terminology of the war on X then becomes a literal use of the military to actually effectuate that war. And that's unusual. That has not really happened before. Yeah. And then just to back out another step, one of the things that was really quite striking that Secretary of Defense Pete Hegseth has done is essentially to remove all of the high level judge advocate general lawyers within the military.

22:37And how is that related to this stuff that's going on? Yeah, I mean, I think that's really important also, because it gets back to what you were saying about regularity and where the rule of law is being undermined within even the military. I One thing that I found striking from the district court opinion in the context of the LA deployment of the National Guard was there was a very long discussion of how these National Guard members were trained. And a lot of the earlier training had been reversed about what they were allowed to do or not and what counted as law enforcement activities and therefore were prohibited to them under this deployment versus what wasn't.

23:23And so I think, you know, there's an undermining of prior norms. I think that the removal of these judges is similarly kind of undermining these earlier norms. And, you know, one thing that I've found often in, you know, kind of reading cases from military tribunals or other judges, you know, there is a sense of, even though it's an executive branch activity, that there's a sense of really wanting to maintain a very strict rule of law and a very strict use of military justice. And so, you know, I think that undermining the personnel who are implementing that and, you know, making it more flexible is all kind of undermining the same regularity.

24:04Yeah, I mean, it's a kind of, it's a kind of worrisome thing. And as you say, the military is generally not trained for, and certainly the National Guard is not generally trained for everyday law enforcement. And one of the things that kind of, that I was thinking of with this is, you know, last term at the Supreme Court, the court decided a case called Barnes against Felix, which was about when police could use deadly force. It was a case that involved a shooting. And the court said there that the moment of threat rule, which says you just look at the moment when the officer uses the deadly force, is too narrow.

24:44That you need to ask whether the officer themselves put themselves in a position where they would have to use deadly force, in deciding whether that deadly force was reasonable or not. So, you know, I mean, the old cases like this involve things like police departments have given up most of them on high speed chases, because you're more likely to kill a bystander or kill somebody who actually you're chasing because you think they have, you know, you tried to pull them over and they fled and the like, but they might not be particularly dangerous otherwise. And I just worry that if the military is engaged in actions in American cities, they're not trained for this at all.

25:26They're trained for lethality. And police departments are now much more trained for community policing and de-escalation and the like. And it does worry me that we will find ourselves in a world in which the presence of ICE agents who are engaged themselves in a variety of very aggressive behavior combined with untrained, nervous National Guardsmen on the street. I mean, think back to Kent State. Absolutely. Right. And I think, you know, part of what you're also implying is that there would have to be extremely careful training for the regular deployment of the National Guard for long periods within cities, because they're just not going to be accustomed to that kind of deployment.

26:15There's going to be a lot of extra training, and we don't have any evidence that any of that kind of training and de-escalation or anything of the sort is happening. And in fact, to the contrary, to the extent that they are being trained, there seems to have been some overstepping of the line prohibiting them from normal law enforcement duties. So I think that you're right to be very concerned about that. So if a National Guardsman engages in an excessive use of force, you know, shoots somebody without real justification or the like, what happens after that? It's a great question. I mean, I think that there needs to be, you know, some other judicial challenge to the deployment of the guard in this instance.

26:58But then there's also a question about, you know, what are the limits of whether they can be sued or not? There's probably some form of immunity that would adhere if they engaged in even illegal or civil rights, not protective behavior. And, you know, plus, to the extent that anyone might be prosecuted or not by either military authorities or by civil authorities, we have seen much more recently, a kind of unitary executive model whereby Trump is insisting on personally approving various kinds of prosecutions or personally approving the agenda for law enforcement. So I doubt that anyone who actually did commit any kind of violation in that context would be brought to justice under the current Justice Department.

27:50And we're now waiting to see what the Supreme Court is going to do in the Illinois case. And like, do you have a sense of where the Supreme Court is on these issues? Well, I'm not sure what to where to think the Supreme Court will end up here. I think what will be interesting to look at is the extent to which they affirm or don't affirm the degree of deference or go even further in terms of a degree of deference towards the president. So the administration has been arguing that the courts actually just have to grant complete deference to the president under this very early case, Martin, which I think is distinguishable in many, many ways.

28:31But that's kind of their argument. And the Ninth Circuit wound up in a kind of intermediate moment of saying that there's some deference, but not entire deference. But will the courts follow what I think should be the principle, which is that the judiciary should determine what the meaning at least is of inability to enforce the laws or of rebellion. And then within the scope of that, the president can make some determination. I don't know if which of those three options the Supreme Court will ultimately take. Yeah, I mean, it's interesting because, of course, the district judges who are granting the stays in the first instance are sort of like, I'm looking out the window and I'm just not seeing this stuff.

29:12They're on the ground. They're equipped to make factual findings. And yet, at the end of the day, the Supreme Court, which is not in Chicago, not in Los Angeles, doesn't have the ability to actually find facts, is going to be deciding on the basis of a pretty skimpy record and often deciding not just about whether to grant a stay or the like, but really reaching almost the merits of can the president do this? Absolutely. And one thing I found quite striking and somewhat disturbing about the Ninth Circuit panel decision granting substantial deference to the president was that it also at the same time questioned the district court's determination of facts, whereas usually there would be fairly substantial deference on the part of an appellate court towards the district court's factual findings.