At Civitas, John Yoo: Governor Newsom Is Committing Constitutional Malpractice. From the introduction:
… President Trump has multiple grounds on which to call out the U.S. Armed Forces to put down the riots. There is a long and important tradition in our country, expressed in the Posse Comitatus Act, against using the military domestically. The PCA prohibits the use of the military “to execute the laws,” except when “expressly authorized by the Constitution or Act of Congress. The traditional bar on the use of the military domestically, therefore, has important exceptions, such as protecting the national government and breaking up resistance to federal law, which the Constitution itself and statute authorizes. The Supremacy Clause declares a fundamental constitutional principle that federal law is superior to state law; California’s officials and residents have no right to block the enforcement of federal immigration policy, no matter how much they disagree with it.
First, Congress has used the power over the state militia upheld in [Perpich v. Department of Defense (1990)] to delegate to the President the authority to call out the National Guard. Critics such as Newsom have focused on the first two cases for which Congress provided: “invasion” or “rebellion.” They imply that Trump has exaggerated conditions on the ground in Los Angeles to introduce the military into cities to expand his own power. Newsom, for example, declared that “these are the acts of a dictator, not a President," and dared Trump to arrest him.
But these opponents conveniently ignore the third ground to call out the National Guard. Congress allows the President to federalize the National Guard when he “is unable with the regular forces to execute the laws of the United States.” It seems evident from the scenes of violence in Los Angeles that protesters seek to stop the enforcement of federal immigration law. Protesters have launched riots to stop ICE and DHS agents from carrying out their duties and have sought to blockade and enter federal buildings. They have attempted to shut down freeways and impede traffic, and have even attacked federal buildings in nearby counties. Television scenes show obvious efforts to stop the federal government from apprehending and removing illegal aliens under its immigration laws.
I think this is correct as far as it goes. 10 U.S.C. § 12406 authorizes the President to federalize the national guard to enforce federal law, consistent with Congress' constitutional power to "provide for calling forth the Militia to execute the laws of the Union" and the President's power to act as commander in chief "of the Militia of the several States, when called into the actual Service of the United States."
The wrinkle, however, is that the statute adds: "Orders for these purposes [that is, for calling the guard into federal service] shall be issued through the governors of the States." I assume the President did not issue his orders "through" Governor Newsom. But also, assuming this is just a procedural formality, it could be easily fixed. (See this post by Ed Whelan.)
There are a couple more wrinkles after that. Suppose the Governor refuses to transmit the President's orders to the guard. Does the Governor have in effect a veto over the President federalizing the guard? This seems unlikely, given the history of Presidents using the guard to enforce federal law over the objections of Southern governors during the civil rights era. But if the statute obligates the Governor to transmit the President's order, is that an unconstitutional commandeering of the state executive power under Printz v. United States? And if so, would it be severable from the rest of the statute (I assume yes).
Professor Yoo continues:
Second, Presidents have the authority to protect the federal government and its officers from attack. …
In In re Neagle (1890), the Supreme Court addressed the use of force by a federal marshal assigned to protect Supreme Court Justice Stephen Field. Field was traveling in his native California when a former rival assaulted him; the marshal shot and killed the attacker. Even though no law authorized federal officers to use force as bodyguards, the Court ordered California to free the federal marshal:
We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace.
Because of supremacy over the matters entrusted to it by the Constitution, the Court reasoned, the President had the power to protect the security of the federal officials who carried it out. “We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death,” Justice Miller wrote for the Court. Miller’s logic extends beyond the judiciary to encompass the entire federal government.
I'm inclined to agree here as well — this power is implied by the President's power to enforce federal law. And it's probably distinct from the limitations of the Posse Comitatus Act mentioned earlier because the federal forces are not being used directly to "execute the laws" — only to protect those who are.
Finally, Professor Yoo adds:
President Trump could expand the military’s mission beyond protecting the federal government to include law enforcement. Congress has amplified presidential power by granting the executive the authority to intervene, even without the agreement of governors, under the Insurrection Act of 1807. For the Act to apply, disorder must rise to the level of an “insurrection” that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” Under this law, Dwight Eisenhower sent the armed forces into Little Rock when Arkansas Governor Orville Faubus refused to desegregate the city’s public schools. President George H.W. Bush invoked the law, at Governor Pete Wilson’s request, to send troops to restore order in Los Angeles during the 1992 Rodney King riots. These precedents would justify the invocation of the Insurrection Act to end the rioting in Los Angeles, should disorder spread beyond the attacks on ICE and DHS officers and facilities to a broader collapse of law and order.
Agreed. I'm not sure why the President hasn't invoked the Insurrection Act. (Perhaps he's not comfortable with the word "insurrection" since it was previously used against him.) And as a further aside, I don't think the Insurrection Act is an unconstitutional delegation, even under a strong view of the nondelegation doctrine. (This point is touched on briefly in Delegating War Power.)
UPDATE: At Volokh Conspiracy, Ilya Somin argues that the President's action is unauthorized: Federal Court Rightly Invalidates Trump's Illegal Federalization of California National Guard Troops. Earlier, in a guest post, Michael McConnell argues on originalist grounds that the President's actions are consistent with constitutional principles (without taking up particular statutory issues), which seems entirely correct. Nothing in the Constitution limits the ability of Congress and the President to federalize the militia without a state's consent. or to use the military for law enforcement.
On the larger statutory issue (leaving aside the "through the Governor" point), the key difference between Professors Somin and Yoo is on the phrase "unable with the regular forces to execute the laws of the United States." Professor Somin says:
Judge Breyer [in the decision enjoining the deployment] also rightly rejects the notion that events in LA qualify as a situation where "the President is unable with the regular forces to execute the laws of the United States." He correctly concludes that this phrase refers to a largely complete breakdown of law enforcement, not merely a state of affairs where laws cannot be enforced fully.
That seems correct as far as it goes, but the situation in Los Angeles seems closer to the former than the latter. At least the President might plausibly think so, in a situation where federal authorities face violent opposition to their enforcement operations involving endangerment of federal authorities and facilities. Thus the matter seems largely to turn on the extent of judicial deference to the President. While I don't think the President should get deference on matters of law, the question of facts on the ground and the need for particular responses to evolving dangerous situations seems primarily an area of executive responsibility.
Posted at 6:05 AM