US President Donald Trump’s order to deploy 2000 California National Guard troops to Los Angeles appears unprecedented, relying on an unorthodox use of a law aimed at quelling serious domestic unrest or an attack on the United States by a foreign power, some legal experts said on Monday.
It marks the first time in about 60 years that an American president has taken such action without a governor’s consent. Furthermore, his executive order authorises the Pentagon to dispatch military personnel domestically to enable federal functions and protect government property - a chilling sign, the experts said, that Trump is prepared to send troops into other cities in response to protests.
“That is completely unprecedented under any legal authority,” said Elizabeth Goitein, senior director of the Liberty and National Security Programme at the Brennan Centre for Justice. “The use of the military to quell civil unrest is supposed to be an absolute last resort.”
Trump invoked a section of the Armed Forces Act that allows the president to bypass a governor’s authority over the National Guard and call those troops into federal service when he considers it necessary to repel an invasion or suppress a rebellion, the law states. California’s Democratic governor, Gavin Newsom, has sharply criticised the move, saying state and local authorities have the situation under control and accusing Trump of attempting to create a “spectacle”.
The directive, announced by the White House late on Sunday, came after some protests against immigration raids turned violent, with protesters setting cars aflame and lighting fireworks, and law enforcement in tactical gear using tear gas and stun grenades. Trump claimed in his executive order that the unrest in Southern California was prohibiting the execution of immigration enforcement and therefore met the definition of a rebellion.
Legal experts said they expect Trump’s executive order to draw legal challenges.
Trump said the National Guard troops would be used to “temporarily” protect Immigration and Customs Enforcement (Ice) officers and “other United States government personnel who are performing federal functions, including the enforcement of federal law, and to protect federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”
Goitein called Trump’s exercise of the statute an “untested” departure from its use by previous presidents.
She said presidents have in the past invoked this section of the Armed Services Act in conjunction with the Insurrection Act, which Trump did not. The Insurrection Act authorises the president to deploy armed forces or the National Guard domestically to suppress armed rebellion, riots or other extreme circumstances. It allows US military personnel to perform law enforcement activities - such as making arrests and performing searches - generally prohibited by another law, the Posse Comitatus Act.
The last time a president invoked the Armed Forces Act and Insurrection Act in tandem was in 1992, during the riots that engulfed Los Angeles after the acquittal of police officers in the beating of Rodney King. The Insurrection Act has been invoked throughout US history to deal with riots and labor unrest, and to protect black Americans from the Ku Klux Klan.
During his 2024 campaign, Trump and aides discussed invoking the Insurrection Act on his first day in office to quell anticipated protests, and he said at an Iowa rally that he would unilaterally send troops to Democratic-run cities to enforce order.
“You look at any Democrat-run state, and it’s just not the same - it doesn’t work,” Trump told the crowd, suggesting cities like New York City and Los Angeles had severe crime problems. “We cannot let it happen any longer. And one of the other things I’ll do - because you’re supposed to not be involved in that, you just have to be asked by the governor or the mayor to come in - the next time, I’m not waiting.”
Trump’s willingness to use the armed forces to put down protests has drawn fierce blowback from civil liberties groups and Democrats, who have said suppressing dissent with military force is a violation of the country’s norms.
“President Trump’s deployment of federalised National Guard troops in response to protests is unnecessary, inflammatory, and an abuse of power,” Hina Shamsi, director of the National Security Project at the American Civil Liberties Union, said in a statement. “By taking this action, the Trump administration is putting Angelenos in danger, creating legal and ethical jeopardy for troops, and recklessly undermining our foundational democratic principle that the military should not police civilians.”
Goitein said Trump’s move to invoke only the Armed Services Act might be calculated to try to avoid any political fallout from invoking the Insurrection Act, or it’s merely a prelude to doing so.
“This is charting new ground here, to have a president try to uncouple these authorities,” Goitein said. “There’s a question here whether he is essentially trying to deploy the powers of the Insurrection Act without invoking it.”
Trump’s move also was unusual in other ways, Goitein said. Domestic military deployments typically come at the request of a governor and in response to the collapse of law enforcement control or other serious threats. Local authorities in Los Angeles have not asked for such help.
Goitein said the last time a president ordered the military to a state without a request was in 1965, when then-US president Lyndon B. Johnson sent troops to Alabama to protect civil rights demonstrators.
Georgetown Law Professor Steve Vladeck wrote on his website that invoking the Armed Services Act - and not the Insurrection Act - means the troops will be limited in what role they will be able to perform.
“Nothing that the president did Saturday night would, for instance, authorize these federalised National Guard troops to conduct their own immigration raids; make their own immigration arrests; or otherwise do anything other than, to quote the president’s own memorandum, ‘those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection and safety of Federal personnel and property’,” Vladeck wrote.
Rachel E. VanLandingham, a former Air Force attorney and professor at the Southwestern Law School in Los Angeles, echoed the point.
Unless acting under federal orders from the president, National Guard units are state organisations overseen by governors. While under state control, Guard troops have broader law enforcement authorities, VanLandingham said. In this situation, the service members under federal control will have more restraints.
“But it can easily and quickly escalate to mortal and constitutional danger,” she said, if Trump decides to also invoke the Insurrection Act, which would give these Guard members and any active-duty troops who may be summoned to Los Angeles the authority to perform law enforcement duties.
During his first term as president, Trump suggested invoking the Insurrection Act to deal with protests over the 2020 police killing of George Floyd, but his defence secretary at the time, Mark T. Esper, objected and it never came to fruition. Trump asked the governors of a handful of states to send troops to Washington DC in response to the Floyd protests there. Some governors agreed, but others turned aside the request.
National Guard members were present outside the White House in June of that year during a violent crackdown on protesters demonstrating against police brutality. That same day, DC National Guard helicopters overseen by Trump’s Army secretary then, Ryan McCarthy, roared over protesters in downtown Washington, flying as low as 17m. An Army review later determined it was a misuse of helicopters specifically designated for medical evacuations.
Trump also generated controversy when he sent tactical teams of border officers to Portland, Oregon, and to Seattle to confront protesters there.
