In America: President Trump Deploys National Guard Without State Governments’ Approval
Ian Hutchinson
President Donald Trump has deployed thousands of troops from the National Guard in the past couple of months, in many states without state governor approval. The President’s actions are unlike any other according to legal scholars: no other president has ever deployed troops domestically without the approval or invitation by state officials for the reasons President Trump has. This writing discusses the legality behind the President’s actions, the political pushback, and the court battles ensuing.
The President’s Capabilities In Militia Deployment
Being the Commander-in-Chief, the President possesses the highest command and control over the military. The President can deploy troops domestically and internationally for various reasons. This power has been interpreted through various laws and historical precedent. It is also the authority of governors to deploy National Guard forces in response to human-made emergencies such as riots and civil unrest, or terrorist attacks. The most influential legislation involving the President’s abilities with deploying troops includes the War Powers Resolution, Posse Comitatus Act, Title 10 of U.S. Code §§ 331-335 (Insurrection Act) & § 12406 (Federalization of National Guard), and Article II of the U.S. Constitution.
The War Powers Resolution requires the President, prior to deploying troops, to inform Congress of installing U.S. military forces into situations that are hostile or exemplify the necessary immediate involvement. Violating this resolution can result in political conflicts between the legislative and executive branch of the government. Presidents can argue their actions do not violate the act or that their decision-making is acceptable under their constitutional authority.
The Posse Comitatus Act was a federal law created in 1878 prohibiting the government’s use of the military as domestic law enforcement. At the time, the intent of this act was to ensure the government would not use the military to police citizens. This motivation comes from the country’s deep historical philosophy of protecting citizens’ individual liberties and limiting the government to prevent the development of a tyranny. Congress has authorized legal exceptions to this act due to domestic circumstances where additional assistance is needed.
The Insurrection Act is an exception that overrides the Posse Comitatus Act. This act allows the Executive branch to deploy federal troops for domestic deployment and temporarily suspends the restrictions. This occurs after a state has consented to the use of troops to handle issues when a state is no longer able or unwilling to protect constitutional rights and enforce federal law due to obstruction. Through this act, the President can federalize the National Guard if they seem necessary in certain situations under Title 10 U.S. Code § 12406.
It is under Article II of the Constitution that each state retains sovereignty, freedom, and independence to ensure its power, jurisdictions, and rights. Article II gives the Executive branch the duty to ensure federal laws are faithfully executed by preventing or overruling state laws that could conflict federal authority. In the past and present, political uproar has occurred when a President decides to deploy or federalize troops against a state's wishes or without their invitation.
Current And Historical Pushback Behind The Executive Branch’s Actions
Trump has deployed the National Guard several times in the last few months without notifying Congress nor receiving invitations from states. In June, the California National Guard was federalized and used in Los Angeles to protect federal law enforcement and deescalate the immigration protests. In addition to California, Trump federalized the National Guard of many other states to assist federal agencies nationwide with administrative and logistical support. In August, Trump deployed the National Guard in Washington, D.C. to combat the crime rate. This month, the President federalized the Texas National Guard and deployed them into Chicago specifically outside immigration detention facilities.
Critics and dissenting members of Congress claim Trump’s actions violate the Posse Comitatus Act and are not justified under the Insurrection Act. Certain officials argue the ongoing circumstances in their states did not meet the prerequisites needing federal troops deployed for domestic law enforcement. They, furthermore, resented the President for deploying troops without state approval. Congresswoman Janelle Bynum of Oregon, amongst other Senators and U.S. representatives, strongly opposed these deployments. These representatives wrote a letter to the President, the Department of Defense Secretary Pete Hegseth, and the Department of Homeland Security Secretary Kristi Noem arguing these deployments violate state sovereignty and limitations set for the executive branch of the government.
“This unilateral action represents an abuse of executive authority, seeks to incite violence, and undermines the constitutional balance of power between the federal government and states,” the letter read. “We urge you to rescind this decision, and withdraw any military personnel and federal agents you have recently sought to deploy.”
Certain media outlets claim the use of one state’s National Guard being deployed into another state without officials’ consent, as Trump has done, is unprecedented; however, the U.S. has seen presidents federalize and deploy troops against state wishes before.
In 1957, President Dwight D. Eisenhower declared Arkansas was combating federal law by preventing the desegregation of schools. Governor Orval Faubus used the Arkansas National Guard to block Black students from going into Rock Central High School. The President federalized the National Guard to prevent Faubus from combating the federal law. The President then deployed the U.S. Army troops to enforce the desegregation process in Little Rock, A.R.
In 1962, President John F. Kennedy federalized the Mississippi National Guard and federal marshals to enforce the integration of University of Mississippi “Ole Miss.” Governor Ross Barnett initially tried preventing this by blocking James Meredith’s enrollment and defied federal orders from the President. In 1963, Kennedy federalized Alabama’s National Guard to enforce court orders after Governor George Wallace tried preventing Black students from enrolling at the University of Alabama.
In 1967, President Lyndon B. Johnson was prepared unilaterally to deploy troops to support the de-escalation of the Detroit Riots. The President did receive a last minute request for help from Michigan Governor George W. Romney. Despite this, President Johnson was prepared to deploy troops despite the support from Governor Romney.
These are several examples where Presidents have deployed troops without the consent from states to uphold federal law and civil order throughout the country. So what is the difference between these actions and President Trump’s?
Court Battles Regarding President Trump’s Actions
Legal challenges to Trump’s actions are currently being disputed. Primarily, the unprecedented aspect of Trump’s deployments is rooted in where the National Guard are coming from, where they’re being sent, and the President’s intentions in deploying these troops.
Historically, presidents have federalized states’ National Guard under the authority of Title 10 of the U.S. Code (U.S.C.). The National Guard has never been federalized and deployed into other states; thus, what makes Trump different is his actions deploying other states’ National Guards into new states.
It is a rarity for Presidents to deploy the National Guard under the Insurrection Act. Reasons to do this in the past included enforcing federal court orders, constitutional rights, and de-escalating extreme violence or rebellious actions. Trump has used reasons such as crime and protest control for deploying the National Guard to assist in immigration issues and common policing. The President has used political rhetoric to portray Democrat-run cities as lawless and in urban decay to justify himself deploying the National Guard. Trump has described places of deployments as “hellholes” and “war-zones.”
President Trump’s reasons and methods of deploying the National Guard are different from the past as they test the extent of the executive branch’s power through his motives and legal reasoning.
Arguments against the President’s actions claim he violated the Posse Comitatus Act and didn’t have proper reasoning to federalize or deploy the National Guard when enacting Title 10 of U.S.C. and the Insurrection Act.
Multiple U.S. district judges found Trump’s actions unconstitutional. Some states have determined, including Oregon, Illinois, California, Maryland, and Tennessee that the ongoing protests, civil unrest, and criminal activity don’t meet the standards needed to enact the Insurrection Act as Trump has. Circuit courts throughout the country are now working to decide the legality of the President’s actions.
