California Gov. Gavin Newsom, despite previous criticism about his judgment and performance, acted over the last few days as we hope any governor would when faced with presidential usurpation of state authority and unilateral military deployment without a state’s consent. He is front and center in the worst constitutional crisis yet to befall America under Donald Trump—when a dystopian scheme for mass deportation and the federal incitement of violence provokes actions akin to a police state, including the unprecedented domestic deployment of the military. To top it off, Trump spoke approvingly of his immigration czar’s threat to arrest the governor, yet another step toward authoritarian rule.
Newsom called out Trump’s illegality, denounced the tyrannical threat to arrest him, demanded Trump withdraw forces, and filed a lawsuit. The complaint makes a powerful case that “The President’s federalization and deployment of the National Guard for reasons not authorized by law and without input from or consent of the Governor contravenes core statutory and constitutional restrictions. Use of the regular armed forces is similarly unlawful here.” The complaint continues:
Reflecting the Founders’ distrust of military rule, the U.S. Constitution and the laws of our Nation strictly limit the domestic use of the military, including the federalized National Guard. The Posse Comitatus Act codifies these strict rules, prohibiting the military from engaging in civil law enforcement unless explicitly authorized by law. The authority to use the military domestically for civil law enforcement is reserved for dire, narrow circumstances, none of which is present here. Defendants have overstepped the bounds of law and are intent on going as far as they can to use the military in unprecedented, unlawful ways.
The complaint goes on to make the case that in invoking Title 10, Section 12406, Trump: 1) overstepped his power insofar as no predicate (no rebellion, no insurrection, no failure of local law enforcement) existed for invoking authority to nationalize the guard; 2) failed to comply with the statutory require to issue orders “through” the governors; 3) usurped Newsom’s authority over the National Guard (depriving the state of use of its guard to, among other things, fight fires); and 4) violated the 10th Amendment.
As Newsom asserted in his complaint, “One of the cornerstones of our Nation and our democracy is that our people are governed by civil, not military, rule. The Founders enshrined these principles in our Constitution—that a government should be accountable to its people, guided by the rule of law, and one of civil authority, not military rule.”
Additional issues, including mass violation of First Amendment rights and deployment of the Marines (which can only be used to protect federal personnel and buildings), will need to be addressed in this and/or other litigation.
The city was quiet and peaceful as of early as Monday, proving the absence of need for federal forces. (“The streets were quiet in the sprawling city of 4 million people early Monday. The smell of fire hung in the air and a series of ash piles littered Los Angeles Street with the charred remnants of cars set afire during protests,” the Associated Press reported. “Police cars blocked streets, and workers swept up debris. Crews painted over graffiti that covered downtown buildings.”) We have seen worse in the aftermath of a big city’s Super Bowl win.
SEUI and other groups organized large, peaceful demonstrations in Los Angeles, New York, Seattle, Washington, D.C., and Chicago to protest the unprecedented federal action and to demand release of SEUI President David Huerta, who was violently thrown to the ground, arrested and charged with “conspiracy” and interfering with Immigration and Customs Enforcement on the flimsiest basis imaginable (e.g., yelling, texting, sitting in front of a gate). Huerta was released on bail.
The galling hypocrisy of Trump and his MAGA sycophants should not be lost on anyone. For starters, Trump pardoned hundreds of Jan. 6, 2021, insurrectionists, including violent felons, who assaulted police officers and destroyed federal property. The notion that he would be outraged if someone “spit” on a law enforcement official and deploy military force in defense of law enforcement insults the memory of those killed and maimed on Jan. 6 (when he failed to deploy the guard to the Capitol). As House Minority Leader Hakeem Jeffries put it, “We will not be lectured by Donald Trump and anyone in the Republican Party about issues of law and order.”
Moreover, decades of right-wing talk about federalism, states’ rights, and originalism have gone out the window. The Founders fought a Revolutionary War to defeat the sort of vision they now propound—untrammeled executive power, use of a standing army to suppress dissent, disregard for local control, lack of due process, and suppression of freedom of assembly. (Even Trump in his first term made clear the president did not have the power to willy-nilly deploy the military against Americans without the consent of a governor.)
But we err when we focus exclusively on California. “In recent months, the administration has been aggressively attacking perceived enemies and using executive actions to bring dissenting voices to heel—including attacks on judges, members of Congress, unions, law firms, universities, and nonprofit organizations,” experts from the Center for American Progress reminded us.
After staging violent raids and arresting a member of Congress, Newark’s mayor, and a state Wisconsin judge on frivolous charges, Trump has gone a step further in declaring the power to deploy military forces anywhere in the United States—even in the absence of any rebellion or invasion. When he insisted that he can send military forces “where protests … are occurring or are likely to occur based on current threat assessments and planned operations,” he included the power to deploy forces against peaceful protests and did not limit deployments to locations where any incident has occurred.
He wants to decide where and when something might happen. (“The bar is what I think it is,” he declared.) As CAP put it, Trump is seeking “to provoke protest and to justify harsh responses, including the deployment of the military to respond to protests of the administration’s policies.”
The leap toward tyranny demands a whole-of-nation response. Courts have a role to play in disabling this noxious pronouncement. Congress, dormant and docile under MAGA majorities, has a constitutional imperative to defund lawless military deployments, exercise proper oversight over the Pentagon, refuse to confirm further unqualified personnel, and investigate those who have plunged us into crisis.
Meanwhile, Americans on No Kings Day and beyond must turn out in unprecedented numbers to demonstrate peacefully and reaffirm that they will not tolerate a police state. Finally, U.S. military and National Guard members, current and former, must prepare to disregard any illegal orders, including unconstitutional orders to commit violence and/or engage in police action against civilians.
Our democracy has never been more fragile. It is up to all Americans to meet the moment and defy the whims of an unhinged tyrant.
Governor Newsome found out the hard way that there is no common ground with dictators OR the true believers; no way to appease a death cult. Glad he is understanding the assignment now, and doing the homework. Keep it up, Governor! Stand (y)our ground!! Democracy WILL WIN!
But of course Donald was real quick on Jan 6 to call up the National Guard and military to put down the actually violent attack on our Federal Government, wasn’t he?