Lawfare Daily: U.S. Troops on the Streets of Los Angeles

[Intro]

Chris Mirasola: Now all of this has led to like two really big questions about what's happened so far, right? First, whether we are plausibly in any of those three categories. Right. Certainly not an invasion. So is this a rebellion? Has the president fully used the rest of the forces available to him? And then second, whether procedurally these orders to federal duty were properly issued through, the statute provides, the governor.

Scott Anderson: It's the Lawfare Podcast. I'm senior editor Scott R. Anderson, here with professors Laura Dickinson of the George Washington University Law School, Chris Mirasola of the University of Houston Law Center, and William Banks of Syracuse University College of Law.

Laura Dickinson: The vagueness of the basis for the president's authority here is very, very troubling.

Right? I mean, that's part of, I think what so many people are troubled about that, that the president is, seems to be saying, I can just send in the Marines wherever I want to, whenever I deem it necessary under Article Two to protect federal functions and interpret them in a really broad way.

Scott Anderson: Today we are discussing the Trump administration's use of the military in Los Angeles and what it might mean for the domestic use of the military moving forward. I first sat down with Laura and Chris to talk over the legal technicalities of the Trump administration's actions in L.A. Then I joined Bill for a separate conversation, putting the Trump administration's actions in broader historical and constitutional context. First, here's my conversation with Lauren and Chris.

[Main Podcast]

So Laura and Chris, we have seen an incredibly dramatic week of events playing out in the city of Los Angeles, in the state of California, across the country from at least me here in Washington, D.C., a lot of fast moving events, and it hasn't stopped. We are facing a potential court hearing on this tomorrow.

We're recording this on June 11th, in the late afternoon here on the East Coast. So things are happening quickly. No doubt before people watch this or listen to this, things will change. So bear with us on that as we try and tackle and anticipate what's coming down the pike.

But before we dig into this most recent set of events, I wanna get a bit of a baseline and understanding about how we've seen the military be used in law enforcement, immigration enforcement, some of the zones in which we're seeing the military's involvement becoming a flashpoint, a point of controversy in California today.

And let me turn to you first on that, Laura. The military has become a little bit of a more present presence in our lives, at least certainly for me being part of the 9/11 generation. When I think about how often I used to see armed soldiers on the streets here in Washington, see elsewhere in the nineties versus the 2000s and after, it's a different picture.

But talk to us about what has become the norm, what the baseline is before this past week, about what role the military is playing in law enforcement, immigration, and other sorts of issues here in the United States.

Laura Dickinson: Yeah, so thanks Scott. It's, it's great to be here. And I would just start by saying what we're seeing right now is pretty unusual for the president to be federalizing the National Guard and sending the National Guard and the Marines into a state without the governor's consent in a situation where you have mostly peaceful protests.

And just stepping back, as you asked me to do, you know, our, our Constitution and our framework of federal law contemplates in general a pretty limited role for the military domestically, specifically to do law enforcement type functions outside the context of war. And, you know, that's in the constitutional structure. It was sort of an impetus in fact for the Constitution because the members of the colonies were, were pretty upset about great Britain's use of the military in the colonies. And so, there are many provisions of the constitution that really contemplate that disturbances violence, crime, this is for the states to deal with in the first instance.

Congress has the power to regulate the military regulate the militia, which is that term for the, the older term, for the na-, what are now known as the National Guard to provide for the calling forth of the militia. We also have after the Civil War, the enactment of the Posse Comitatus Act, which actually makes it criminal for the military to do direct law enforcement functions unless there's a specific statutory exception. And there's some limited statutory exceptions, such as the Insurrection Act, which we'll talk about, which are really for extraordinary circumstances.

Now, it's true that in recent years we have seen more of a role for the military doing functions in support of law enforcement and even immigration, but really in a mostly in a supportive context.

And we've seen sort of an expansion in the understanding of what the military can do to support law enforcement, but with respect to direct law enforcement type activities that is pretty rare in our constitutional tradition. And that's mostly taken place when the president has invoked the Insurrection Act, which, which hasn't happened here.

Scott Anderson: So there are, as we well know, soldiers that have been at various points on usually our southern border in particular, playing different functions. And we've seen videos of them putting up concertina wire, operating first aid tents, sometimes other facilities, providing the use of infrared technology, other technologies to detect people, identify people.

But this is a different sort of structure and role. That's the support role you're describing. What is the line between a support role, something that Congress has authorized in an array of sort of law enforcement context, since I believe the 80s, at least under the current statutes that we have and the sort of role that we're seeing today? Where is that line between a support and the, the other law enforcement function that becomes a bigger legal question?

Laura Dickinson: Yeah, I mean, I think it can be a little blurry, but I think one of the distinctions that's drawn is, is the military doing direct law enforcement? Is the military arresting people? Is the military using force on people?

So that's sort of the line that the courts have drawn in different ways between a support role and a direct law enforcement role.

Scott Anderson: So that brings us, I think, to some extent, to what we've been seeing over the last week in California where we have military personnel, 4,000 California National Guard units at least set to be mobilized, I don't think they're actually at that number yet, but that's the goal or that's been authorized by the secretary of defense. And then about 700 Marines up by my last count on their way eventually to California. Again, I don't actually believe the Marines are on location yet, but are set to arrive there the next 24 or 48 hours.

Doing things that are protecting federal personnel and property there, in particular ICE agents. We now have reports that at least some military personnel are going on patrols with ICE agents, providing kind of perimeter security while ICE agents pursue arrests, serving warrants, other sort of traditional law enforcement functions.

Chris, I wanna come to you first 'cause you have been helping us dissect what exactly is happening with these latest actions in terms of legal authority. So talk to us about that. What is the administration relying upon to authorize this scope of duty, which does look a little different than what Laura described about the traditional support role that we've gotten a little more used to the military providing to law enforcement folks and mostly on the border, of course not downtown Los Angeles usually.

Talk to us about what we know and we, let's start with the National Guard folks first ‘cause that's kind of got another layer of this question about how they're even being put under the president's command and control. Talk to us about the statute and the legal arguments of the administration's making there.  

Chris Mirasola: So to start with the National Guard, right? When we think about the National Guard we kind of usually think about two separate buckets of legal authorities that are relevant to describing the missions that they go on, right?

So first is their mobilization authority 'cause National Guard members on any given day, right, are civilians. You have to do something pursuant to statutory law to get them onto duty, whether that be state duty or federal duty. And that brings us to the first statute that's like taken up I think a lot of the conversation so far which is Section 12406 of Title 10.

And this is an authority that authorizes the president in three enumerated circumstances to federalize members of the National Guard so they can do some kind of federal mission. Now the three enumerated circumstances, right, are one, an actual or threatened invasion. Two, an actual or threatened rebellion. Or three when necessary to exe-, help execute the laws where other forces available to the president are insufficient. An important part of this statute as well is that the orders to federal duty must be issued through the governor.

Now, all of this has led to like two really big questions about what's happened so far, right? First, whether we are plausibly in any of those three categories, right? Certainly not an invasion. So is this a rebellion? Has the president fully used the rest of the forces available to him? And then second, whether procedurally these orders to federal duty were properly issued through, the statute provides, the governor.

And so that's what we're seeing in the litigation that is ongoing. And on Thursday, we will have just finished probably the, the hearing that's set on, on these issues that, that's really at the center of a lot of that litigation.

Separate from that is the authority for the president to authorize the mission that these National Guard and the Marines are actually undertaking, which is like colloquially called the protective power. It's a theory of inherent constitutional authority that the president purportedly has to use the military to protect federal persons, functions, and property.

And so we saw some of this in the very early days of the National Guard deployment—early days, I know it's just Wednesday and this started on Saturday—where the National Guard was located only for example, at the federal detention facility, right. As you described, over the evening and into today, we have begun to see Marines accompanying ICE agents to ensure that they are not obstructed while they're undertaking their federal law enforcement duty.

That is certainly an aggressive use of the protective power. In recent years when we have seen this theory of inherent constitutional authority exercised by the president, it has often been in the context of protecting some federal property, some federal location. To my knowledge, not since perhaps the early 1970s have we seen an example of the military being used more expansively to ensure that a federal function can be undertaken as we seem to be seeing in the case of these Marines in Los Angeles.

Scott Anderson: So I wanna pull that statutory authorization and constitutional authorization and put it against that legal principle that Laura introduced for us and that is the Posse Comitatus Act restriction.

You know, this is a law, the Posse Comitatus Act enact in the mid-19th century as a criminal prohibition, but generally understood to say Congress has not authorized, as in fact, restricted with this criminal prohibition, the use of military personnel for certain core law enforcement functions, particularly the ones as Laura described, involving that confrontation with civilians except where Congress has expressly authorized it. So no implied authorization.

How does that intersect here? Because the protective power is implied, I think inherently never stayed expressly on the Constitution. And the statutory authorization here, at least on its face, it's not clear what exactly it authorizes. So talk to us about how you read the intersection with the Posse Comitatus Act and, and then I would also raise the question, what is the administration arguing now that we, as of this afternoon, have briefing from the government in the pending litigation before the Northern District of California?

Chris Mirasola: So maybe I'll kind of proceed in like three different buckets. So first, how I characterize the government as traditionally, like responding to this question. Second, like my own view. And then third, some very confusing argumentation that we're seeing in the DOJ briefing from today briefing, which like has a number of like very odd aspects including like missing tables of authority.

So, if we start off with what the government response, I think traditionally would be going back for a very long time, War Department and the Department of Justice memoranda have asserted that the scope of authorities authorized under the protective power fall short of those actions which are prohibited by the Posse Comitatus Act, which is how they've gotten around exactly the legal problem that you just described, right?

There is nothing about the protective power that is rooted in clear text of the Constitution at all, right? It is entirely based on like these really, these like ideas about federal sovereignty being exercised through the president and potentially some kind of hook to the Take Care Clause. It’s honestly, quite amorphous.

So what the federal government would traditionally say is that all of these activities fall short of the kind of direct participation in law enforcement activities that Laura was just talking about. Right.

The next question, right, for us is like whether that is true, particularly when we're thinking about these actions to protect federal functions, right at the far extreme of what we would consider within the protective power. And really Office of Legal Counsel opinions have never grappled with the case law that has developed since the 1970s implementing the Posse Comitatus Act because as, as Laura was saying, right.

So we, we basically have three different tests out there where courts in different circuits have tried to interpret what the Posse Comitatus Act means 'cause the statute is super old and the wording is incredibly unclear. The opinions that the executive branch cites as standing for the legal justification for the protective power come before all of that jurisprudence. And so these two bodies of law have just never been put into conversation by the executive branch. This is very much a legal theory that is like stuck in like 19th century amber.

And this becomes particularly relevant when we're thinking about these activities to protect federal functions I think. Because it's there where you get activities that most that, that come closest to the line of the pervasive participation in law enforcement activities, that cases out of the Ninth Circuit, for example, have labeled as, as, as being violations of the Posse Comitatus Act.

And as facts continue to change about what the executive branch is doing in places like L.A., it becomes really hard to police this line between a function that is defensive and protective and those actions, which are actually doing some kind of law enforcement activity.

Laura Dickinson: And just if I could just jump in here just to give some concrete examples.

So one thing that OLC has said is within the protective function is crowd control. So we can think about, well, what does that mean, crowd control? And how proactive can the forces be in using some kind of limited force for crowd control purposes and still be within that protective function and not stray outside it.

Similarly, we have reports that the Marines are being trained to detain people and you know, even limited detention would seem to cross the line into direct law enforcement. Although you know, some might say, well, limited detention in some circumstances maybe doesn't cross the line. But I think this is an example of how some of these functions that are being contemplated really push the boundaries of this theory of protective functions, which is already quite, quite broad and put it in tension with these principles articulated in the Posse Comitatus Act.

I mean, the bottom line though, just putting aside the kind of legal argumentation, is that, you know, if the National Guard and the Marines are doing these things, they are basically kind of policing. They're, they're aiding in immigration. They're actually doing immigration enforcement and they're policing their fellow citizens. And that's pretty extraordinary, I think to see if they end up doing this in California.

Chris Mirasola: And then I'll just say one additional thing on some of the briefing that we saw, now it's just about two and a half hours old. Somewhat confused briefing, I think from the Justice Department about the legal basis for undertaking these protective functions in particular. So most of the litigation so far seems like it's gonna be focusing on these questions of statutory interpretation, about Section 12406. We, we can put those to the side for now.

There's about two pages that's dedicated to like what the Justice Department thinks is the substantive basis for this protective power. And very confusingly they begin with Section 12406, suggesting perhaps in language that is like somewhat self-contradictory and at least extremely unclear, at least to me, that Section 12406 is a statutory exception to the Posse Comitatus Act, which at least for me could not plausibly be true for a couple of reasons.

First, it's important to note that it would be in tension with longstanding Defense Department understanding of statutory exceptions to the Posse Comitatus Act. Going back for as long as the statute has been around the Defense Department and before that, the War Department, has never listed this statute as an exception to the Posse Comitatus Act.

And there have been reissuances of this regulation regarding the Posse Comitatus Act every couple of years since the act was first enacted in the late 18 hundreds. Right? So that's like the first thing to note.

Second, the statute that we're talking about is like quite clearly just about personnel mobilization. It is in a portion of Title 10 that is explicitly just about the organization of the National Guard. It was originally enacted in a statute that was, again, just about the organization of the National Guard. And throughout this period, there was nothing about the Insurrection Act or any other of these exceptions of the Posse Comitatus Act that were at all changed.

And so it's, it's at least extremely confusing and potentially quite a significant change in executive branch opinion to think that Section 12406 is doing some kind of substantive work here.

Laura Dickinson: And I would just jump in and say, you know, there's case to be made, then an exception to Posse Comitatus Act has to be pretty explicit.

Chris Mirasola: Right, good.

Laura Dickinson: So, yes, I, I did just wanna make a point about the three conditions for invoking this statute invasion, rebellion and situations regarding the execution of the laws. I think if we look at those three words, I think you can make a pretty compelling case that none of those situations is actually met.

None of those conditions is fulfilled in this circumstance where you have mostly peaceful protests. I think the word invasion across federal law has been interpreted by most courts and experts to mean an invasion by a foreign power. Which this clearly is not right. This is not an invasion situation.

Rebellion, it, it's understood to be a pretty high threshold of violence, which I think it's hard to say you have that here.

And, and on execute the laws. I mean, on its face, it may seem like that's a fairly low threshold, but if you look back to the original understanding of that term elsewhere, in constitutional text and debates about constitutional text, Bill Banks actually will have a lot to say about this because there's actually an argument to be made that that means something akin to treason. It's not just a situation where the laws might be broken, right? It's a pretty high threshold as well. So I think it's important to note that about, about the statute.

And then, I mean, Chris, you have a pretty interesting argument about the meaning of the, the language regarding the governor's involvement and whether that's a procedural or a substantive limitation of any kind.

Scott Anderson: I want to turn to that. Before I do that though, let me, let me spend one second on these three prongs because I do wanna dig into these statutory arguments. So, you know, I think I tend to agree the objective conditions here don't rise to how I would think about these three conditions.

And we know they don't rise to how Governor Newsom and his staff, the other people who have been involved to write this correspondence, think these terms should be interpreted. They've been very clear about that. They don't think any of these three conditions are met.

But a key question that's gonna arise in this litigation, expressly in the briefing, and then kind of tacitly in terms of how the court approaches, is this question of deference, you know. To what extent is the president the one who gets to decide whether these conditions are met and how far can he, can he stretch that terms? How much credence must we give his subjective understanding of the facts on the ground, or interpretation of the facts on the ground, vis-a-vis our own, or in the case of the judge, the judge's own assessment of the facts?

What do we know about that, Laura? I mean, how have we seen courts approach these sorts of questions in this or related context? And how much do we think that'll carry forward into this present moment where we've seen the administration in such a confrontational posture towards judiciary across a whole array of cases to which this is simply, you know, kind of one more on the pile?

Laura Dickinson: Yes, and, and I'm glad you raised this. Of course, the courts have been pretty deferential to presidents when they have invoked versions of the Insurrection Act.

In fact in some cases suggesting that they don't really have jurisdiction to, to consider, to adjudicate on the matter, and that the president really has full discretion to interpret the statutory provisions. Though, you know, in some of those cases, they were situations where the president was clearly acting within the authority, under the act. They weren't sort of borderline situations.

And also they involved the Insurrection Act, which is distinct from this statute, which is kind of not something that, as far as I know, has been the meaning of which has been litigated. I will also note the way the statute is formulated. It says whenever and then these three conditions are met, the president may call into federal service members and units of the National Guard, et cetera, et cetera, in such numbers as he considers necessary.

So that the discretion in the statute is with respect to the numbers, but not with respect to the conditions. Now, that doesn't mean a court still wouldn't defer. The court might also just decide under a broader theory of national security deference, or under the political question doctrine that this is just something that a court shouldn't get involved in.

On the other hand, I think there is a case to be made that this is a matter of statutory interpretation here, and that a court could look at whether these predicate conditions have been met in this case.

Chris Mirasola: Yeah. I think in many ways folks can think of the litigation that's ongoing about the Alien Enemy Act as like a decent proxy for the kind of problem that Judge Breyer is gonna be facing when he is in court tomorrow, which is a tradition of deference as Laura was just describing, against a set of facts that goes so off so far outside the usual presumption of regularity that we have in this field that really just like puts a lot of pressure on the court to do the kind of statutory interpretation that Laura was just talking about.

Scott Anderson: So let's turn now to that other prong of 12406. This question of the fact that orders mobilizing the National Guard of any state have to go through, under the statute, the governor. Shall be issued through the governor, a kind of passive voice command, if you will. Shall traditionally being binding directive language by Congress.

Chris, you wrote a great piece for us at Lawfare on this yesterday, at the time of recording anyway. Talk to us a little bit about this provision, which has gotten so much attention, but maybe a little more than it's actually warranted in terms of the broader set of issues.

Chris Mirasola: Yeah, I mean, I think the bottom line for at least my opinion, is that I'm a bit skeptical about the argument that California is making here, suggesting that the statute requires a substantive role for the governor in deciding siding, if not how, than some other aspect of the contours of the orders that are issued pursuant to the statutory authority.

The text of the statute, as you say, is both directive and passive voice, which is like fantastic draftsmanship in nineteen oh, 1908 which is when this language was added. But I mean like really what we're dealing with like is what does it mean to issue? And one could imagine a pretty broad range of activities that all would fall within, like issuing an order from something much more ministerial to the very robust activities that California was urging in its, in its briefing.

And I think that both because of the fact that this statute has often been used in the past from a little, that we can tell because a lot of this history is not publicly available as the mobilization authority that's used in tandem with the Insurrection Act, including in circumstances, for example, in the Eisenhower administration, when the governor explicitly rejected, right, the federalization of the National Guard, that it doesn't make a whole ton of sense for the statute to be interpreted in a way that suggests that the governor has some kind of veto or substantive role to play in this process.

It's buttress by the fact that the National Guard is a really strange organization. Members of the National Guard are simultaneously members of their state militia and members of the National Guard of the United States, which is a reserve component of the Federal Armed Forces. And so it's different than the usual questions of like 10th Amendment reserved powers that we would often think about in like a similar kind of a context 'cause the organization itself is both a military resource for the state and the federal government at the same time.

Laura Dickinson: I would just say, I mean, there's also kind of a procedural argument. I mean, I think Chris, you were making a substantive, you were addressing the sort of argument, there's some kind of substantive check on the president here from doing this without the governor's consent.

And you're saying that it's hard to read the language that way, but there's also an argument that, that the language imposes a procedural obligation on the president to communicate with the governor, that orders have to be issued through the governors. Right. And, and, and there's no indication that President Trump did that with Governor Newsom.

So, so there's sort of a procedural argument to be made here that that, that that was not followed.

Chris Mirasola: Yeah. Great. Right. Yeah, it seems absolutely clear, right, that there must be some manner of state involvement in the actual issuing of the order, right? Like you can't just ignore the text that exists here, right. It has to have some kind of meeting as, as Laura is, is talking about.

This, of course, very helpfully is mired in this like, factual dispute between the president and the governor about like what they talked about which is not particularly encouraging. But, right, yeah, exactly, that like dispute's gonna be the center, I think of that, of that debate.

Scott Anderson: Now the other prong of the legal challenge here, 'cause so far we've really only talked about the legal arguments as they relate to 12406, a statute, which is only relevant to the National Guard who are being mobilized, not the Marines. And I would think that would apply as well to any Posse Comitatus Act exception it may provide. It wouldn't be useful for the Marines that aren't affected by the statute.

So let's talk about the other part of the legal challenge, which does apply to the Marines and the whole military deployment, that's the constitutional argument that California is making.

So California has posited, in broad strokes, that essentially this is an intrusion upon the reserved authority of the state of California, the state's sovereignty preserved to it by the 10th Amendment to the Constitution, which basically says all the powers not given to the federal government are expressly reserved to the states. And it points to the fact that in the view of the state, at least the conditions under which the Call Forth Clauses, the Militia Clauses in Article One, Section Eight where it says, you can call forth the militias haven't been met.

And basically saying, look, cons, the Constitution gives the president cert-, and Congress certain authorities to do these things, but this doesn't fall in those bucket. And therefore it's in our reserve duty as the state of California to police these sorts of things. And you know, you are intruding upon that in the federal government.

Laura, I, I wanna come to you first. What do you make of that constitutional argument? On the one hand, it is very high level. You know, it, it is a broad kind of conceptual format, all constitutional arguments are. But it's not one that has a lot of heft on it, at least that we've seen so far in terms of briefing specific cases. But we may get more out of that as it goes along, particularly as really we're just at the TRO phase. There's gonna be a lot more briefing as this goes along.

What do you make of it at first impression? Do you think that's something that the court might lob onto in terms of restricting this military mission, particularly the Marine part of it that could go on even if 12406 is rendered invalid or what they've done under 12406? Or, or do you think it, it raises some questions for you?

Laura Dickinson: Well, I mean, I think, I mean, I think it I mean it's basically kind of a state's rights argument that, you know, the military can't come in without the, the state's consent. I think it has to be more clearly paired with a argument about Congress's role. Because I think, you know, Congress clearly does have a lot of power in this situation, and I think the, the reason why the 10th Amendment argument has some strength is because the, the administration is not really relying on any sort of statutory authority. They're just sort of pulling the authority out of Article Two.

And so, I don't know. I, I think it's, I think it's a hard argument for a court, as you said, because there's so little precedent to kind of rely on here. But on the other hand, I see kind of, I see the power of it. I think it's gonna be hard for the court to issue a decision on that, on that basis.

On the other hand, I mean the vagueness of the basis for the president's authority here is very, very troubling. Right? I mean, that's part of, I think what so many people are troubled about that, that the president is, seems to be saying, I can just send in the Marines wherever I want to, whenever I deem it necessary under Article Two to protect federal functions and interpret them in a really broad way.

So, I don't know. I don't think that the state's argument is likely to succeed on this, but I do find the government's assertion to be really troubling.

Scott Anderson: Chris, I wanna come to you on this as well, but let me run one kind of observation by you that kind of jumps out at me. Is that, it is an interpretation that even if the government wins, could be somewhat constraining because it comes back to this idea about what is the federal authority in this place, right?

So basically the success of this argument rises and falls on the extent to which you recognize the protective power or some other basis under federal law for the executive branch should be doing this. So I could imagine a universe if I am, you know, Judge Breyer and I am skeptical what the government's doing, but also understand the executive branch often gets deference in these situations for good reasons.

I could see myself leaning towards an understanding that says, hey, you know, there are reserve duties. You can't drift too far into doing all sorts of things that are preserved for the states, including enforcing lots of criminal laws. That, of course the state primarily is responsible for enforcing, that is well recognized. Maybe the protective principle is okay if it's actually applied.

But the real question then becomes like, how much are they actually abiding by that principle? What are they actually doing? Does this sort of argument maybe sort of less of a function of in validating what the president's doing, but instead of constraining it, at least within the terms of, of its argument?

And does that have implications for how aggressively the administration can push, how it uses these personnel that it's got deployed, and basically how broadly it envisions the protective power? Might that be a point of friction more than the actual invalidation of what's happening?

Chris Mirasola: Yeah, great. This is great. So, to put my, like, my bias on the table, I, I wrote, I wrote, I wrote a whole paper about the protective power. So like-

Scott Anderson: I, I read it. It's a very good paper. Highly recommend.

Chris Mirasola: My very strong bias is for the litigation to focus on it 'cause I have some serious questions about its constitutional basis as Laura was just talking about.

And I think you're absolutely correct. I see the 10th Amendment argument not as like, particularly meaningful on its own merits as maybe meaning, putting it that way is, is is putting it too un charitably. But I think I see it as establishing kind of like a normative baseline, right? As you were talking about, right.

Like a constitutional environment within, within which we, we should be talking about this issue, which then I think puts right center, you know, squarely in the center of the conversation, like the substantive authority that the president is actually using, which is this understanding of Article Two that has shifted over time since it was first articulated in the 1870s, in, in ways that are pretty concerning.

And so yes, right, I could have readily imagined a world where the move that California made to bring up this federalism issue then forces Judge Breyer to be like, okay, then like what is the actual basis in the Constitution for the protective power that you are asserting? And there's extremely little briefing about that in the Department of Justice filing that we have today.

What they basically did was copy and paste a couple of section of a 1971 OLC memo that's publicly available without going into any of the additional OLC memoranda that do a bit more, try to like explicate what they're talking about. Potentially because I mean, if this is all, you know at the TRO stage, there's not much time to do anything. There are like substantive issues with everybody's briefing with within such a short timeframe.

But I think probably also because the kind of constitutional argument that the executive branch has used to justify the protective power is pretty far removed from how we think about the president's authorities under Article Two today. Its memos that are talking about the sovereignty of the United States without citing any provision of the Constitution in particular as entrusting this very vague sense of authority in the president individually.

And without taking account for significant develop developments in statutory law which have occurred over the past hundred years or so, right. Which have transferred a lot of these responsibilities to particularly statutorily authorized federal law enforcement agencies.

Things for example, like the Federal Protective Service, which is a law enforcement agency of the Department of Homeland Security, whose statutory mission it is to, is to protect federal functions and property throughout the United States. When this authority was first articulated in the 1870s, it just didn't exist. The world was entirely different.

And so I I, I think that this has to come into the conversation that is had tomorrow in the hearing because it gets to the center of like what the president is actually relying on to use the military in L.A.

Laura Dickinson: And just, just to elaborate on this point a little bit, I mean, if we think about the sort of weird shape of the protective power, and Chris, your article is really, really terrific.

I mean, OLC relied in part, has relied in part on the, In re Neagle case, which involves this funny case where, you know, a federal judge riding circuit was being attacked and a federal marshal defended him. And the question was whether or not the federal marshal, you know, you know, as part of that protective function, could, could do that.

The thing about, so that's a really strange situation, unusual situation. But actually there was also arguably statutory authority for the federal marshal in that case to do that. So to say that that sort of comes out of this sort of nebulous Article Two protective role is to read the case beyond its facts.

And so I think, I guess going back to Scott's point, right? You know, would the court perhaps take this as an opportunity to define the boundaries around the protective power? If, if, if that's really, rather than sort of deciding based on the 10th Amendment broadly, the court might sort of say, well if, if the basis for this is the protective power, then you know, what, what are the limits on this?

I guess I would just come back to the point, I don't know that the court is going to delve into that here. Maybe it will, I think it's, a court is more likely to do that in, in a case that could arise out of a claim of excessive force used by a member of the National Guard or a Marine in, in this context.

So let's say they do use the Marines to, to detain people or to do crowd control and somebody is harmed. I think there's a much greater chance that a court would be looking at that issue and Posse Comitatus and, and all of this in, in litigation coming out of that kind of a situation.

Scott Anderson: That, and that gets to the last issue I wanna touch on before we start looking forward to kind of next steps, which is collateral legal challenges.

Right? We have seen right now this one direct legal challenge within the state of California. Maybe there'll be others. State of California clearest party that have standing, that's clearest incentive to pursue it. Seems to be tackling most of the issues, right? But if this goes on, we're gonna see it affect a lot of other people with legal rights.

We may see fatal shootings or terrible injuries as a result of what the military does. We may see people arrested, perhaps lawfully or unlawfully depending on how the court rules, depending on how people envision the proper scope of what these military personnel are allowed to do. In the past, we have seen people use these as vehicles to challenge whether PCA limitations are being abided by.

So I, I guess my first question is, how is the pursuit of this path if it's allowed to go forward, and particularly the administration keeps pushing the envelope of what it can do. What are the long-term ramifications of that in this case? Is it an inability to prosecute people, challenges prosecuting people? Are we gonna see the exclusionary rule be brought to bear on evidence collected by military personnel in violation of the Posse Commas Act, if that becomes an issue?

And the other question I have is, what is it the military can do more than federal law enforcement can do? We know they're equipped in camouflage and weapons. They're intimidating. They have a perspective. They're not as trained in how to handle these situations, but they have a certain cultural factor that comes up, that's a presentation. But is there legally things that they can do that similarly armed and trained and equipped or even not better trained and equipped federal law enforcement personnel couldn't do.

And that comes in terms of as well, like immunity. Like are we expecting, you know, soldiers to be more insulated from wrongful conduct than federal law enforcement personnel are. Chris, I'll come to you first on that. Laura. I, I'd welcome your thoughts as well.

Chris Mirasola: Great. So on the first bit about what we, what we might expect of some of this later litigation that I think you're right is inevitable.

There have been many attempts to use the PCA to exclude evidence, right? This is pretty common in a lot of cases, brought by folks who are detained by CBP at the southern border, and defense attorneys bring up issues as a way to exclude evidence, right? Because usually, you know, oftentimes it's a member of the military who first on their binoculars sees the person crossing the border and then calls CBP, right?

So that piece of information right, is core to the case and routinely that those attempts have failed at the district and circuit court levels particularly in the Ninth Circuit. So I don't have a lot of confidence in that avenue.

I would have more confidence in like a, like an ultra vires claim being brought in like a habeas kind of proceeding. I could imagine that perhaps being a more fruitful avenue for litigation, right? Because I think in the end what we're talking about is whether the foundational legal authority right, is present, right? And so I, I, I have slightly more optimism about that like path of litigation being, again, like a bit more fruitful.

Oh, and I've now, I've already forgotten what your second question was.

Scott Anderson: The second question was essentially, how much does using military personnel actually liberate the Trump administration to do more than what it could do with federal law enforcement personnel?

Chris Mirasola: I think this is what is also very confusing by some of, about some of these moves, right?

Because even if we're in an Insurrection Act context, right, moving us forward there, it's not like the Insurrection Act authorizes the military to undertake ICE's immigration enforcement functions. Not at all. It is solely an authorization for them to suppress whatever the, that insurrection is, right, whatever that civil disturbance is to bring order back to the city or that location so that those federal functions can then be undertaken by their proper federal personnel under existing federal authorities.

It's also not like any of these statutes, abrogate any provision of the Constitution. All the constitutional protections that pertain as a general matter continue to pertain whenever the Insurrection Act is invoked. And so at most what you get is personnel. And as you say, it's often personnel who don't have a ton of training in the kind of interactions with civilians that are at issue, which is why I think we often don't see the Insurrection Act or other kind of authorities to deploy the military within the United States used all of that often.

Cause again, all you're getting is bodies who are not necessarily fully trained in the task at hand. And so you would only want to use them when your primary issue is personnel as opposed to needing some kind of expertise that the military can bring to this crisis situation.

Laura Dickinson: If I could just jump in too.

Yeah. I mean the Constitution, all the laws about the use of force, they apply whether the military is doing a law enforcement type function or it's another law enforcement official. And so, you know, it's, it's quite risky to put the military in that role, as both of you have said, because that's not what they're trained for, especially the Marines. But the National Guard to some degree too.

The National Guard do sometimes do law enforcement functions when they're acting in, in their state capacity. But many people have said that the training is a bit spotty depending on the unit. Certainly the Marines, right? They're, they're not typically trained in this. The administration said that these marines were trained, but now we're hearing reports they're still getting training. It's hard to know what that actually means.

But you know, they're trained mainly to fight in wars where the rules for the use of force are the law of war, which allows for much more permissive use of force than in domestic functions. And so it's really risky to put those individuals in a situation like that where they don't have extensive or proper training because it could result in, in, in excessive force.

It, you know, in addition to these liability risks that we've talked about, because I think we, we would see litigation if that were to happen, you know, challenging use of force in violation of constitutional rights and such. So it, it could put the military at risk of being dragged into litigation.

But it also can undermine the military's credibility and respect and the bipartisan trust that we as Americans have in the military. I mean, it's one of the few institutions in the United States that enjoys bipartisan respect and I think putting them into this volatile situation kind of politicizes them and it's risky, risky for them.

Scott Anderson: We're almost out of time, but before we break, are there any last observations you think it's important for us to make about what is happening on the ground in L.A.?

Laura Dickinson: I, I did just wanna say whether it's about the Insurrection Act or this other statutory authority that they're using, or this Article Two authority that they're using to send in, you know, armed forces under the control of the president without the consent of the governor. I mean, that's just really rare in our history.

Even when the president invokes the Insurrection Act, presidents across multiple administrations have been really cautious about that. The Insurrection Act does in Sections 252 and 253, allow the president to act without the consent of a governor, but in really limited circumstances and the executive branch has really interpreted that to mean that.

You know, it should really be invoked only as a last resort when law and order has completely broken down, or to enforce a court order over the objection of state and local officials. So even though we're not, this is not an Insurrection Act invocation, that principle of, of sending in federalized forces without the consent of the governor, you know, is, is, is one that bipartisan presidents have, have only done as a last resort, as a last resort. And so this is really, really unusual.

Scott Anderson: Well, I think that is a good point to wrap on, but I think we'll have opportunities to come back and talk about this topic more as I think we'll be living with it for a while yet to come, if not in California, than maybe elsewhere. Until then, Chris Marisol, Laura Dickinson, thank you for joining us here today on the Lawfare Podcast.

Laura Dickinson: Thanks so much.

Chris Mirasola: Thank you.

Scott Anderson: Now here's my separate conversation with Bill, focusing on the broader historical and legal context surrounding recent events in L.A.

So, Bill, I sat down a little while ago with Chris Mirasola and Lauren Dickinson. We talked through and hash through a lot of the nitty gritty legal details about what's happening in L.A.

With you, I want to both broaden the aperture and kind of deepen our timeline because you of course wrote “Soldiers on the Home Front.” I think for most people who have been working and looking at this issue set for a while, it is kind of the definitive book and resource on this issue set a certainly, certainly of the last few decades. And that gives you a really unique perspective of what U.S. practice has been in the longer range.

So talk to us about where, what the Trump administration is doing, this protective power role its carved out for its personnel in L.A., these military personnel being deployed there, as well as what it seems to want to do, which is to use military for broader immigration enforcement, something it's inching towards, but it's not wholly embraced as of yet.

William Banks: Right.

Scott Anderson: Talk to us about where that fits in the broader arc of historical practice. How we think about that?

William Banks: I’m glad to have the opportunity to put this in a historical frame, Scott, because in the, in the rush of daily events these recent days that, that gets lost. If you take a look at, at “Soldiers on the Home Front, I don't know, it's a 250 page book. I wrote the part on peacekeeping at home and civil disturbances, and that chapter's a hundred pages long, it, nearly half the book.

And, and it illustrates just by its girth that there's been a lot of up and down and changes, dynamic changes over time in domestic use the military in those two circumstances. We, we tended to separate in our treatment the idea of soldiers as cops and soldiers as peacekeepers, distinguishing civil disturbances as a public safety matter, from simply soldiers as cops enforcing the law.

So there are many, many examples historically of, of uses of the military for one or both of those circumstances. And I suppose it all begins with the, the ambiguities in the framing language cause the Calling Forth Clause certainly put the, put the hammer in the hands of Congress, of course.

And, you know, your, your viewers and, and listeners probably understand that our, our Constitution was framed the way it was for a, a few different reasons. And they're all relevant to the current controversies that are going on now. For one, of course, the antipathy to the English use, heavy handed use of, of police and military authority in the colonies and our determination to keep unbridled power out of the hands of an executive.

We went, you know, we won a Revolutionary War without any national leader at all. We went through several years of an Articles of Confederation without an executive branch. And when we bit the bullet and decided we had to do that, we, we determined to make sure that the commander in chief was a civilian.

And, and then to separate the authority over the use of the military between the executive branch in time of war and Congress, who, which should call the shots about war and about deploying the military domestically. So you have the Calling Forth Clause.

The other dynamic, of course, that I'm sure all of your patrons at Lawfare know, is federalism. So, it was a struggle, of course, to, to get a Constitution drafted and ratified given that many of the states thought that their systems of government were doing quite well. Thank you. And, and having a national government was okay, it might be a, a necessary evil, but we should sure as heck control it so that the, that the lion's share of authority from the state's perspective remain with the state. So there's a, there's a 10th Amendment of course, to the Constitution that really doesn't isn't very helpful except as a symbol of the state's retaining considerable authority.

So all of the questions going forward now for 250 years about domestic use of the military have those backdrops, civilian, the need for a civilian to be in charge; the separation of powers to make sure that neither Congress nor the president has total control over these kind of deployments; and then probably most importantly, that the default orientation should be that the states decide when a military force might be need to needed in a given situation.

So, the Calling Forth Clause in the Constitution gives the hammer to Congress, as it were, and it is framed in terms of the militia. Of course today we know that the contemporary militia are the National Guard. And your, your viewers and, and listeners probably know that the National Guard has evolved considerably over the, over the years, and wears different hats.

They can serve in their traditional capacity, which is subject to the command of the governor of their state. They can be federalized by the president as they were this past few days in, in Los Angeles. In between that is something called Title 32 status, where the soldiers are still under the command of the governor, but they're performing a federal mission. And the, the benefit for the, from the state point of view, they're still controlled by the governor, but the, their, the cost of their deployment is paid for by we, the, you, the American taxpayers.

So, historically there have been a lot of examples. Should we talk about some of the examples?

Scott Anderson: I think that'd be really useful. Some parallels and both similarities and differences.

William Banks: Yeah. So, you know, probably the, maybe the first famous domestic use of the military after the founding was that the Whiskey Rebellion in Western Pennsylvania.

President at the time was a guy named George Washington. And, and the first, the Calling Forth, the legislation that was enacted 1789, then again in 1792 conferred authority on the president to call out the militia in the event of, of a public disturbance. And Whiskey Rebellion really wasn't much of a rebellion, but distillers in western PA weren't pony up tax.

There was a considerable arrearage, if you will, that was owed to, to the national government by the distillers in that part of Pennsylvania. Attempts to negotiate a settlement and resolve it with peaceful, by peaceful means were, were breaking down.

But the law at the time it gave Washington the authority to call out the militia. And he called out a significant number from, I believe three or four states. He had thousands of, of soldiers mustered for this purpose. But one of the unique things about the early legislation was that to make the deployment, he had to obtain the sign off of a federal judge and that that was a requirement of the early law.

And Washington presented the case to a federal judge, and the federal judge granted him that authority. Washington proceeded. He exercised a show of strength in Pennsylvania and the, you know, the so-called rebellion collapsed within a matter of days. There was hardly a shot fired. And, and most of the, the distillers either left town and went west and search of fortune, or they, they ponied up what they owed and, and the, the dispute was resolved without further violence.

Between then and the Civil War, there were more episodes like that one and in almost no litigation over the president's call up, couple of cases, but none that, none that would require a review now, I think. But when the Civil War came around and Lincoln and the nation were in dire straits with the worst crisis that we could have ever faced, Congress amended the law.

They had earlier stripped out the requirement for a judge to certify the need for a federal force. And now they, they lowered the predicate language that the president would have to, to show or, or proclaim to, to call out the militia. So it became the, you know, sort of the modern equivalent of what we see in the contemporary Insurrection Act, where anytime it's impractical to enforce the laws, the, the president can, can call out the, the militia contemporarily, the, the National Guard.

And even though those amendments, 1861 and then again 1862, I believe, maybe one other time during or immediately after the war, also to aid in reconstruction. Those were amendments that were probably needed for extreme times. But in our, in our tradition here in the United States, we tend not to undo the, the extraordinary grants of authority that have been made over time. So there have been some changes to the law over time, but basically those 19th century strictures still prevail.

There were a lot of episodes in the 19th century where presidents might call out the military to do some law enforcement or civil disturbance. Famously, they broke up the Pullman Strike, which was a big deal. They did all, all kinds of things to, to break up unions and solve labor management disputes, heavily on the side of the owners, of course, throughout the late 19th century. And you know, it, it sort of goes on from there. And there've been no, no serious efforts to amend the basic Calling Forth provision in in the last a hundred years. It's still the way it is.

In the 19th century, not only did the, did presidents have that authority, which they exercised from time to time, but sometimes subordinate officers would take it into their own hands to, a general officer, for example, or even a subordinate officer who's deployed somewhere in the hinterlands might, might organize a, a local militia and under the supposed authority of the Calling Forth Clause undertake a law enforcement or peacekeeping operation in a state.

Scott Anderson: So that takes us to kind of the, the contemporary moment we're in, where we're seeing the Trump administration deploy troops right now for this limited mission of protecting federal persons and property, federal personnel and property, I should say.

You know, the reports we're getting from the ground is that military personnel are essentially providing a security perimeter around ICE agents and other DHS personnel as they're engaging in immigration enforcement activities, detention, serving warrants. There have been some cases of military personnel detaining people temporarily not arresting them, but detaining them as part of this function until they can be arrested by a law enforcement personnel.

I suspect, I believe from pictures, though I haven't actually read an account of it, they're also involved in defending actual facilities as well. So maybe have, are, are conducting security around certain facilities that have been the, the focus of some of the protest efforts in Los Angeles.

That protective power idea, is this something that we've seen presidents use, either active duty or federalized National Guard soldiers before? Is that something that's a familiar practice or is this a little more extraordinary, even if it's something that might have some legal cachet in how the executive branch has thought about the president's authority?

William Banks: It is pretty extraordinary, Scott, in, in in the circumstances where it's being exercised. Now, I'm sure that with, with Chris and Laura, you talked about the Posse Comitatus Act establishing at least the legal presumption that even federalized guard shouldn't be engaged in law enforcement. They're subject to Posse Comitatus Act as if they were regular Army.

The 12406 authority that was, that the president asserted the other day to go in the Los Angeles is an exception to Posse Comitatus Act. But it's framed, just as you described it, it's a protection operation. And, and that's pretty extraordinary. I believe that, you know, I'm, I haven't done all of the recent historical research, but it hasn't been used in about 60 years.

President Lyndon Johnson, ironically utilized it in 1965 to send federalized guard to Alabama to protect civil rights demonstrators who were being beat up and harassed by citizens in the state of Alabama. Governor Wallace didn't want to have anything to do with that operation, of course.

And I believe President Nixon called out the guard to deliver the mail during the postal strike. That was 1970, I believe, and that, that might have been the last time the statute was invoked. So 65 years. And, and, you know, neither operation looks very much like what's going on in Los Angeles.

So it, you know, the is is so often the case with statutory grants of authority you can read the language to do a number of different things, but this is pretty limited. And you, you were careful to say a few moments ago they might detain but not arrest. Certainly they can't search, they can't seize, you know, they can't enforce immigration laws under the posture that they're in right now. And that's the important line.

Scott Anderson: We're at the point now where the Trump administration is actively engaging this kind of protective function around ICE agents and DHS personnel, but there's very good reason to think they have broader aspirations than that.

We've heard lots of White House personnel say we want the military involved in enforcing immigration law and conducting, you know, arrests and seizures and removals. We have heard, seen the president issue orders on day one that lay out some broad legal predicates about the idea that maybe we can use the military to do this, maybe the president has an inherent authority to defend the country against invasions and do enforced immigration and do a bunch of other things that aren't being relied on as of yet, but are in the ether, put out there by this administration.

So we started having to think about where might they go next if they find either courts pushback or there's too much limitations internally from this authority they're currently using, or it just doesn't do the mission they want to do, they may look elsewhere.

The one is two places we've heard, or one place we've heard, and one that you've flagged for us. The one we've heard the most is the Insurrection Act. That's something even the administration has nodded towards that it may move towards. We saw Senator Tom Cotton publish an op-ed this past week. A bit of a rehash for an op-ed he did, controversially published a few years ago saying, you should call out the Insurrection Act to do this.

You've also written about some other authorities, including 287(g) that might be used for that. So let's talk about those two. We can start with 287(g) if, if that's useful as another way we may see the Trump administration getting to this use of the military for immigration enforcement. Talk to us about what that is and then we can go to the Insurrection. Act

William Banks: 287(g) is is, is part of the authority of DHS to amplify the resources that are available to immigration enforcement. And the agreements there, they were minuscule in number and significance until the Trump administration.

In his first term, Trump expanded the use of 287(g) in an attempt to, to enhance his program of deportation, limited success. At the, before Trump was elected, the last attention anyone really paid to 287(g) was during the Obama years when there had been an agreement I think approved during the administration of George W. Bush and Maricopa County, Arizona, suburbs of Phoenix.

And there the infamously the Sheriff Joe Arpaio effectively was deputized to enforce immigration laws. And he just engaged in, in wholesale racial profiling, abusive treatment of those who would be apprehended. It was really quite a despicable demonstration of local government authority. His, his antics and his tactics were exposed. There was an investigation eventually, even in a lawsuit. And basically 287(g), it didn't, it didn't shut down entirely, but there were new, no new agreements for a long time.

Trump started it again in his first term. He got maybe a few dozen agreements. By their nature the agreements are simply intended to amplify the personnel available to ICE to do their job. So the, the entities that could cooperate were state and local police agencies, state and local marshals and sheriffs. It could be state and local, you know, social service personnel of various kinds. Anybody could be in effect deputized so long as they went through a training segment that would get them up to speed on what, what ICE does and how they do it.

During this first five months of Donald Trump's second term, he's already executed more than 600 287(g) agreements and they're all over the United States. And the, the question of interest to, to me and and perhaps to you and and others is could that extend to the National Guard in the states so that instead of a, a few hundred new people brought to ICE in a given place, could they, you know, be thousands and thousands of, of new personnel that could help with these deportation operations?

It's legally ambiguous whether that can occur at all, but it is occurring in so-called red states. Florida and Texas have already signed 287(g) agreements that extend to their national guards under the control of their governors. And I think between the two states, there are more than 20,000 National Guard personnel who are now deputized, if you will, by, by DHS to service ICE in those two jurisdictions. And indeed those operations are off, off and running.

Whether that could be extended in other states, I think the, the short answer is if the governor approves yes. Obviously Governor Newsom is not on board with that kind of operation in California, so it's sort of a red state, blue state thing, and the president knows that. And he can certainly expand greatly the number of personnel including national guard's people in the states where he's got a cooperative state leadership, but not otherwise.

Scott Anderson: That's fascinating. I mean, that's a fascinating practice and something that people need to keep an eye on. But let's also talk about the other tool that is constantly getting invoked is always hanging over these conversations.

That's the this question of the Insurrection Act, right? We've heard the administration suggest maybe we'll get there. There was a lot of confusion initially when we saw the president's memorandum come down at the beginning of this week, because it looks a lot like the Insurrection Act. 12406 applies in a set of conditions that are very similar to where you might see a president invoke the Insurrection Act in terms of the statutory language, although it's a, it's a, it is a little bit different.

Talk to us about what the Insurrection Act might allow the president to do beyond what they're doing now and how available it is. What, where are they gonna see the pushback? Where are there gonna be legal questions? Or is it something that looks like it is a tool available to the president, whether wise or not to use?

William Banks: I'm afraid it's the latter. I think it's a tool available to the president if he chooses to use it. And I think he knows that he is been so advised. As you know, the last invocation of the Insurrection Act, ironically, was in Los Angeles in 1992 by President George H.W. Bush in response to a request from Governor Pete Wilson of California following rioting that broke out after the, the jury verdict clearing police officers of beating the motorist Rodney King in L.A.

Rioting there at that time was really serious. There was a tremendous loss of property fires, rioting, looting. There were injuries and deaths and the, the, the scale of the chaos had spread across some sections of Los Angeles was pretty expansive. And, and, and initially Governor Wilson had called out National Guard on his authority and they weren't able to contain the situation.

So he called Bush. Bush, said, I'm on it, I'm on with you. And they had Marines from Camp Pendleton, if this is beginning to sound familiar. And, and other Army from Fort Ord and other places. They had thousands upon thousands in L.A. at that time. That was the last invocation. The, the Act has only been invoked per probably about a dozen times in our history.

As a matter of, of statutory interpretation it, it's, it's so broadly written that your, you know, your 10 or 11 or 12-year-old child would be able to improve on its language. It, it essentially gives the president a wide berth to militarize and federalize an incident if he determines, here's the rubric, that it's impractical to enforce the laws of the United States.

Now that's, you know, you can drive trucks and all kinds of big vehicles through a gap that large in the reasoning. As you know, there have been numerous attempts to amend the law over the years. Political dynamics have always prevented that least for a long time. The law was amended once in the year after Hurricane Katrina, when the Bush administration was embarrassed. George W. Bush was embarrassed by their poor response to Hurricane Katrina.

But the, the federal response with the amendment for that one year was so heavy handed and so pro-federal state adjutant generals from all 50 states objected to the amendment. And within one year the amended Insurrection Act was amended again, back to its original state.

So we're, we're basically looking at a 19th century law here. That allows the president essentially carte blanche. So the, the limitations if there are any, Scott, are political.

Scott Anderson: And what is it the Insurrection Act would authorize beyond what we're seeing? It, it, it really would be an, a clear exception to the Posse Comitatus Act. Allow for enforcement, you know, arrest detentions used for military, for enforcing a range of federal laws, although still within constitutional limits, right? So we're gonna see-

William Banks: Still within constitutional limits. I mean, that's the, that's the only break that's supplied legally here, is that, you know, the, the soldiers can't violate the Constitution. But they can go on immigration enforcement raids. They can arrest, they can detain, they can search, they can seize. You know, how the Fourth Amendment would apply in those circumstances is anybody's guess. I don't think there's ever been a test of it, frankly.

I, there's a story, I don't know if it's apocryphal, but I've, I've read it and I've heard it, but during the 1992 response in L.A. once the military got on the ground and they were trying to support the deployed California National Guard and the police, there was an incident where a group of individuals were sort of, barricaded inside a house. And they were shooting, shooting at police and other officials out in the yard. And they determined, the officials on the ground that they needed to, to disarm this house and bring the individuals out.

And the police officer spoke behind him to a soldier and he said, I'm gonna, I'm gonna go for the house, cover me. The police officer or the soldiers behind the police officer interpreted cover me as an instruction to blow up the house. And they did, killed all the individuals inside. The cop was looking for cover. What he got was obliteration.

So there, there's that kind of a danger that resides in military deployments for, for law enforcement. That's a pretty extreme example to be sure. But who knows how this might unfold in the future.

Scott Anderson: Well, and that brings us to the last issue I want to touch on, which is the constitutional limits. I mean, the, the picture we've painted here is a situation where the framers were seriously concerned about the use of the military domestically, but also seem to anticipate there were situations that might warrant it.

And it gave a lot of authority to Congress to define the rules about here's when you can use the military, at least in certain extraordinary situations. Congress has then enacted laws that are very broad and subject to broad interpretation and what some might call abuse because there are very broad terms than what you can invoke, certainly, the Insurrection Act, which hasn't been invoked yet.

But might, might be there in terms of its ability to be used where you see obstacles to enforcement of federal law, things like that, something a very broad, broad definitional term that the president can, might be able to interpret in a lot of different ways that might pass judicial muster.

The question I have is where are the constitutional breaks on this? We know the Fourth and Fifth Amendment and, you know, rules about quartering soldiers in houses and a bunch of things like that still apply so we can set those aside. You know, there's not gonna be a complete violation of those soldiers can't do domestically what they do on a battlefield. It's just not the same 'cause they're people with constitutional rights here and it's not an actually an armed conflict situation.

But what about the question about the actual invocation? Are there arguments about, that might push back on the idea that Congress can give the president as broad authority as you could read these statutes?

William Banks: Yeah, it's an argument about nondelegation, isn't it? And, and it, you know, that those arguments have they, they're probably worth about a dime on the dollar the, these days. There's not a lot of, a lot of value in them. I, I, and that's my view. I don't think there's a lot of value in them. I think Congress has to do its work and reform the law.

As you know, there are all kinds of great proposals to do so, to insert sunsets, to insert reporting requirements, to have super majorities. The, the kind of good government stuff that, that we would expect to see. A lot of great groups like Liza Goitein and others have, have tried to marshal the support for this kind of effort. And they got close, I think a couple of years ago.

I think the other legal lever is really the 10th Amendment as open-ended and vacuous as it is by its terms. I think governors have powerful voices here. And I think governors can, can step up as Newsom is, and a lot of governors are, are joining him now to say, look, this, this is our bailiwick. And, and we, we should, we need to take care of our own citizens and our own property, our own resources. We have the wherewithal to do it.

Indeed, as, as you know, state National Guard forces are quite numerous and sophisticated these days. It's not, it's not the old you know, grab your musket on the way out the door and march down for the weekend. These are very sophisticated, highly trained for the most part well-resourced military units. So, I think there's a, a strong argument to retain a significant state role in making decisions about the use of military, whether to enforce the laws or to break up civil disturbances.

Scott Anderson: So we've seen California bring that argument to bear in its current litigation.

They essentially argue the 10th Amendment preserves a whole ban of authority, not expressly given to the federal government in the Constitution. Federal government, only under the Constitution, under the Militia Clauses, has the authority to call forth the militia, use the military in certain select circumstances, invasion, insurrection not met here enforcement of federal law. They argue not necessary here. These soldiers aren't necessary to do that. That's the, the threshold.

Then there's also another constitutional argument you've put forward in your scholarship about the Guarantee Clause. A clause of the Constitution, Article Four, Section Four, that says, essentially, the federal government as a whole, Congress and the president together have an obligation to protect the states from domestic violence where requested by the state legislature, or if the state legislature is unavailable, the governor of the state.

And you've made an argument that that actually pushes back a little bit potentially on the scope of statutory authority provided by the Insurrection Act, that part of the Insurrection Act may at least be an application as applied unconstitutional.

Talk to us what you make about those two arguments. And where they bear in this present situation, both currently, what the president's doing, and then maybe what the president wants to do down the road if he wants to do an expanded use of the military.

William Banks: Yeah. I think that on expanded use, it's, it is an important argument. I know so far as I know, it's, it's only you and my mother who've recognized the value of that particular argument, or anybody who read my 2009 law review article. And I think, you know, we could count them on one hand probably.

But it, it, it, it is it was struck me at the time that it was strange that this argument hadn't had more currency in in, in legal circles up to that point. And it is, it's just the part about domestic violence that that requires I think parsing where the authority lies and the need for state permission.

I think it is a good argument and it's, you know, it if, if there's an invasion, if there's an insurrection, that language doesn't apply. That is, you don't need to get permission to from the governor or the, or the legislature, so long as you meet whatever other legal requirements are in place.

So the idea of the framers, I think, was that domestic violence is sort of a catchall and it's, it's lesser in significance or less, less destructive, less harmful in a state than these more grandiose the fear of an invasion. Of course, in the 1790s and turn of that century, it was still a fear of a foreign army invading war with France, whatever it is, natives.

But now it could be something like riots. And riots should, should default to state control, which they're, they're able to manage in probably almost all circumstances. And the, if things get outta hand, there's a telephone and, and the governor makes a phone call. That's a good system, it seems to me. And it, and there is textual support for it in Article Four. You're right. I'm glad you brought it up. I haven't had a chance to blow that horn in a long time, so thank you.

Scott Anderson: Well, you know, it's one of these arguments that I think you could see bearing on the situation. I thought might see, might come, become relevant, could even become relevant in the litigation.

William Burns: Yeah.

Scott Anderson: Cause of course the concern, the main concern here is that President Trump may want to use soldiers in a broader way that engages with riots, or if you wanna call them that, or protests or a lot of activities beyond just facilitating the enforcement of federal immigration law. That's the focus right now.

But we've heard the rhetoric about deploying troops in response to public protests before, including in 2020 in regards to the George Floyd protests. And that strikes me as a, as difficult, more difficult question where that argument becomes a lot more relevant. So we may yet see it come forward, especially if California is a really focused in its litigation on trying to draw lines between before what the Trump administration might do next as opposed to focusing too narrowly on what it's currently doing.

Bill, we're almost out of time today. But as somebody who's really spent more time in their career looking at this issue set than just about anyone else, what is the main piece of advice you would give to listeners and viewers as citizens to the extent they are citizens of the United States and voters, to policymakers, to folks in the White House?

What is the big consideration about choosing what tool set to use in this case and the potential benefits and dangers of pursuing this military route that the Trump administration seems to be headed down?

William Banks: You know, that's a good question and, and, and a difficult one, but I think that the solutions, if there are any, are process based solutions.

I think that in the states and in the national government, we need to have better processes for sorting out what to do in a crisis. Ours are antiquated and the politics have often stood in the way of of reform that makes sense. States are now much more capable and proficient at managing crises on their own.

The laws should catch up with that. So I think processes inside a state and inside the national government, communications processes and sort of a you might think of a series of findings that should be made before steps are taken to ratchet up the level of a response with federal resources involving eventually potentially military resources. Military should be the last option. We've got a lot of resources in the country that don't wear military uniforms.

Scott Anderson: On that note, we will wind up the conversation for now. We may have opportunity to circle back again. Until then, Bill, thanks so much for coming here today on the Lawfare Podcast.

William Banks: Good to be with you, Scott.

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