How Brown Would Reject Trump Nat’l Guard Plan



When President Trump said he was going to order the National Guard to the border, we re-posted our piece from a year ago on how California would resist that. Since then it became clear that Trump wouldn’t take command of the Guard, but instead would ask governors to send their guardsmen. This is our piece from a year ago.

Excloo: Gov. Jerry Brown’s administration, alarmed by a report of a draft plan to mobilize 100,000 National Guard troops to round up unauthorized immigrants, has quietly concluded that the Trump White House legally cannot take command of California’s National Guard short of declaring immigration to be an “invasion.”

White House Press Secretary Sean Spicer on Friday said the report by the Associated Press about plans to dragoon the Guard was “100% not true. It is false. It is irresponsible to be saying this. There is no effort at all to round up, to utilize the National Guard to round up illegal immigrants.”

Of course, Trump famously told Fox News bromance buddy Bill O’Reilly recently that California is “out of control” on immigration. So even the suggestion that Trump might try to seize command of the California National Guard was disturbing enough to cause Brown legal advisers to analyze the state’s options, should Trump seek to activate the Guard as a deportation force.

guardDon’t Tread on Me. In the normal course of events (how fondly and wistfully we remember such bygone days) National Guard troops are under the command of the governor of each state.

At the same time, the Posse Comitatus Act of 1878 prevents the use of federal armed forces (except the Coast Guard) for peacetime law enforcement within the United States. And under the National Defense Authorization Act of 2008, the president can only call up the National Guard for active duty for a congressionally sanctioned national emergency or war.

Moreover, according to a high-ranking source in the Brown administration, Trump “would have to get the consent of the governor” – something Brown would not provide.

While Brown has not spoken on the issue directly, at least three Republican governors, in Utah, Arkansas and Nevada, have objected to the suggestion that their National Guard troops should be used as a deportation force.

Under federal law, whenever :

(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;

the President may 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. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

mrwilsonStay Off Our Lawn! California officials thereby have concluded that the state cannot be compelled to use its police or military forces for law enforcement purposes;  in their analysis, controlling immigration is a federal responsibility, not a matter for state or local law enforcement.

On the other hand, Homeland Security Secretary John Kelly last week signed new guidelines empowering federal authorities to aggressively detain and deport unauthorized immigrants.

“The surge of immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States,” Kelly stated in the guidelines.

According to the Washington Post, Kelly cited a surge of 10,000 to 15,000 additional apprehensions per month at the southern U.S. border between 2015 and 2016.

Gov. Brown’s lawyers don’t believe that rationale would hold up in court as an “invasion” justifying federalizing the Guard. And without consent of the governor, they have concluded, Trump cannot deploy California National Guard troops as a border-control or deportation force.

By now, of course, we’d be surprised by exactly nothing that President Screw Loose might attempt to do.

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There are 5 comments for this post

  1. avatar sqrjn says:

    What a scoop! Is this reported elsewhere? Is your source in the Govenor’s Office or the AG?

    Sounds to me like total nonsense. I’d love to read the Governor’s lawyer’s analysis. To bad they didn’t give you more than a conclusion and a cite! Can you go back to the well?

    I expect they are unlikely to publish anything despite the political currency that could be gained from doing so in this environment, because the conclusion is dead wrong. I haven’t done any legal research, but everyone knows this issue has come up before.


    Consuetudo pro lege servatur (custom becomes the law i.e. It happened before it can happen again)

    But let’s assume their reading of section (1) of the statute is correct and that the statute is a constitutional limit on presidential authority. What about (2)?! Do they think that if Trump is willing to federalize the Guard to round up illegals he wouldn’t be willing to declare SF and every other “sanctuary” to be in a state of rebellion?

    • avatar kpminott says:

      And, that, children, is how ex-President Trump started the USA’s Civil War II, which quickly spread throughout allied nations, launching WWIII.

    • avatar patwater says:

      Wow well let’s hope it doesn’t come to that… we certainly live in interesting times. Thanks for the inside baseball Team Calbuzz.

  2. avatar sqrjn says:

    Interesting to note that DHS Sec. Nelson said in the press conference that they were invoking Title 32 and requesting the Governors’ cooperation. They are not invoking Title 10, 12406 which includes the in case of “invasion, rebellion, or inability to execute Federal laws” Which was presumably what the high ranking source (please tell me it was Ms. Gust!) was talking about over cocktails. Also presumably some kind of euisdem generis argument, where ‘inability to execute Federal law’ is taken to be a general term (seems fairly specific to me) that would be limited to the type of specific terms that came earlier in the sentence, ie invasion or rebellion. Meaning the Statute limits the President’s power to call up the Guard without the consent of the Governor to situations involving his inability to execute Federal law equivalent to invasion or rebellion. Which is also inconsistent with prior invocations like calling up the Guard under Title 10 in Little Rock, Arkansas.

    What does Dr. Hackenflack think of the politics of Trump asking Brown to voluntarily help out border security just like Obama and Bush did and having the Governor tell the president to take a hike?

    • avatar pjhackenflack says:

      The politics of Brown refusing to help Trump militarize the border? Great for Gandalf.

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