Is Trump sending the National Guard legal?

Photo from PBS

On the claim that immigration is out of control, Donald Trump has discussed deploying the National Guard to major cities including New York and Chicago. This statement received major pushback by top Democrats such as California Governor Gavin Newsom, Maryland Governor Wes Moore, New York Governor Kathy Hochul, Illinois Governor JB Pritzker, and Chicago Mayor Brandon Johnson. 

What is the National Guard?

The National Guard consists of 400,000 members who follow national and federal orders for deployment. The National Guard can be deployed in times of war, disaster relief, and civil issues. Most National Guard members have full-time jobs outside of their military service. Following Basic Training, they participate in a weekend drill once a month and two weeks of annual training to stay ready and prepared. 

Why is Trump Deploying the National Guard?

President Trump has claimed that the Insurrection Act of 1807 is reason enough to deploy the National Guard. This act states that the President has the authority to deploy the National Guard to states in the instance that civilians rebel against their Government. 

Can Trump deploy the National Guard?

The Posse Comitatus Act signed by Rutherford B Hayes in 1878 says the military can not intervene in domestic or state issues. Congress can approve the National Guard to go to states if they wish, usually to help in the cases of natural disasters, and rarely in times of domestic distrubances.

Has the National Guard ever been deployed?

A few of the most notable times the National Guard was activated include the instance of Little Rock Nine for which Dwight D Eisenhower ordered the National Guard to escort nine black students to classes while integrating Little Rock High School in Arkansas. The governor of the state was against integration and Eisenhower’s use of the National Guard. 

In March of 1965, President Lyndon B. Johnson (LBJ) ordered the National Guard to protect civil rights protesters who were fighting for voting rights and protesting the death of a black 26-year-old named Jimmy Lee Johnson by a state trooper in Selma, Alabama.

In 1968, LBJ again sent the National Guard to multiple cities to control protesters after Martin Luther King, Jr. was shot. 

In May 1970, President Richard Nixon sent the National Guard to Kent State University after the governor sent a request to control anti-war protesters who were responding to Nixon’s action during the Vietnam war and his decision to bomb Cambodia. The deployment ended with four students killed and an additional nine injured.

In 1992, Geoge H.W Bush sent the National Guard to control protests in response to the acquittal of several police officers in the beating of Rodney King in 1991 on account of his race. Bush used the Insurrection Act after looting and rioting took place in some neighborhoods in Los Angeles.

President Donald Trump sent the Guard to Minneapolis in 2020 to quell protesters after George Floyd’s death at the hands of four police officers. 

During an attack on the Capitol on Jan. 6, 2021, President Trump did not deploy the Guard to quell the rioters who breached the outer perimeter and the building, despite the pleas from Congressmen and women who attempted to contact the President directly. One particular response from President Trump to then Speaker of the House, Kevin McCarthy, was that the people attacking the Capitol were angrier than Speaker McCarthy.

The Guard has also been deployed domestically to assist with COVID 19 procedures, including mass testing sites, and during natural disasters like fires and hurricanes.

What the courts have said

Judge Charles Breyer claimed that Trump’s use of the National Guard is illegal as it violates the Posse Comitatus Act. Breyer claimed that use of the National Guard must be given back to Governor Gavin Newsom in California. A three-judge panel voted to pause Breyer’s decision. The Supreme Court has ruled that Trump may deploy the National Guard. 

What states have been sent the National Guard or should be expecting them

• Chicago, Illinois: Trump has approved 300 National Guard troops to be sent despite Democrat Governor JB Pritzker wishes. The Pentagon reached out to Pritzker to alert him of the deployment. The latest update has been that there are National Guard troops from Texas who are currently training at Illinois bases. The Attorney General, Kwame Raoul, Gov. Pritzker, and Mayor Johnson have sued to block President Trump from deploying troops to Chicago and Bridgeview. Some local businesses and restaurants are allegedly denying food and restroom access to ICE agents, setting up “ICE-free zones” in their neighborhoods, and using text channels to warn other businesses of ICE raids in the area. Trump claims the National Guard is needed to protect the ICE agents from being assaulted by protesters, while actual footage shows ICE agents firing pepper balls and tear gas at those peacefully protesting near the Broadview ICE detention center. Judge April Perry ruled that the National Guard can not continue to enter Chicago but those already here may stay. Judge Perry mentioned that the National Guard in Chicago may lead to civil unrest. The fencing is supposed to be removed by Midnight on Oct. 14 after the city won its lawsuit to have it taken down as it impeded emergency vehicle traffic.
• Portland, Oregon: Trump planned to send 200 National Guard members. A judge who was appointed by Trump has blocked the Trump administration twice in 24 hours this week to send the National Guard, stating that Trump’s decision to send the National Guard violates the 10th amendment (Establishes federalism and the ability for states to make their own decisions). The judge also clarified that there was no imminent threat due to protests. The temporary hold expires on October 18. Trump has said he will invoke the Insurrection Act which allows the President to bypass Government approval to send the National Guard. But this also is likely illegal as there is no evidence of protesters against the federal government in Portland that could be deemed an insurrection. The President appears to be making decisions based on skewed footage as seen on television. These networks portray five-year-old footage of George Floyd protests near a one-block radius of an ICE detention facility with violent footage.
• New Orleans, Louisiana: As of October 3, the National Guard is still preparing to be deployed after they met with state police. Republican Governor Jeff Landry has approved 1,000 National Guard members to be deployed. The request by Governor Landry is still pending.
• Los Angeles, California: Governor Gavin Newsom has spoken out against the National Guard being sent. In June, the deployment of National Guard troops by a judge was deemed illegal and in violation of the Posse Comitatus Act. The judge did specify that the troops already there can remain. Trump has now said that some of the troops will be sent to Portland.
• Memphis, Tennessee: The National Guard has been spotted in Memphis. Eight National huard troops were spotted. Republican Governor Bill Lee has given his support for the National Guard to be sent and has elaborated that there will be no more than 150 unarmed troops. The Democratic Mayor of Memphis Paul Young has said he does not know how long troops will be in the city.
• Washington D.C: While it is legal for Trump to deploy the National Guard due to D.C not being a state National Guard, troops have been seen picking up trash and not doing anything to tackle crime or protests.

Wrap up 

Trump has shown that he believes he is above the courts and does not believe in following the Constitution. While crime or protesting may get out of control at some points, it is for police and state officials to take care of if they do not wish to have the National Guard sent. Trump’s deployment of the National Guard against Governors’ wishes is an example of an unconstitutional act. In cases like D.C., it has proven to be a waste of resources.