National Guard or Political Weapon?

Bernadette Meyler: Thinking about this as a new norm is particularly disturbing in that it would lead to the possibility of having continuous deployment of the National Guard—and if the Insurrection Act is used, other military throughout the United States. And already there’s been the prospect floated of having the National Guard monitor elections in different locales, so I think that the presumption of regularity is really under threat.

Pam Karlan: This is Stanford Legal where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

Today I am fortunate to be joined by my colleague Bernadette Meyler. Bernie is the Carl and Sheila Spaeth Professor of Law and she’s also the Associate Dean for Research and Intellectual Life here at the university.

When we think of the National Guard, we think of them showing up when there are disasters. We think of them deploying to foreign countries. We know a lot of people in the National Guard who have been overseas repeatedly over the last several decades. But one of the things we don’t think about a lot, or at least we haven’t in recent years, is the National Guard being called into federal service. And there’s a provision of the U.S. Code, 10 U.S. Code Section 12406, that says that whenever the United States is invaded, or is in danger of invasion by a foreign nation, or there’s a rebellion or a danger of rebellion against the government of the United States, or the president can’t execute the laws of the United States with the regular forces, he can call into federal service members and units of the National Guard of any state. And one of the things we’ve been seeing recently is President Trump deploying this power in a way that I don’t think we’ve seen at all since maybe the civil rights era. And Bernie, you’ve been looking at this, and I’d love to just talk through with you what’s happening now, both I think in California and in Illinois, and how we find ourselves here and what the law is.

So welcome to the show, Bernie.

Bernadette Meyler: Thanks so much. I’m really glad to be here discussing this with you.

Pam Karlan: The last time you were here, it was all about pardoning—the pardoning power, which you have a wonderful book on called Theaters of Pardoning, and talking about the extent to which Donald Trump could be pardoned, or the extent to which Donald Trump might pardon others. And now we’re seeing some of the offshoots of the fact that not only does Donald Trump have these huge powers, but he doesn’t have to worry anymore about a lot of the kinds of constraints that we’ve generally thought presidents operated under.

Bernadette Meyler: Absolutely. So, I think you’re in part alluding to the backdrop of this, which is the case involving presidential immunity that was decided by the Supreme Court recently that said that there is immunity for presidential acts committed in office—official acts in office. And I think that part of the fact that Trump is immune for official acts means that he might be unleashing more powers that are potentially questionable at this point in time.

And actually, there’s another offshoot of the pardon power involved here, which is that the National Guard at this point is being used to support the work of ICE officials and of immigration enforcement, so being used to protect federal officials in that way and bolster operations, but there’s also a sense that potentially anyone who violates civil rights in the process of doing that could also be able to be pardoned, even if they might be prosecuted by a future administration, given the breadth of the pardon power today.

Pam Karlan: I want to get back to the question of what can be done about violations of people’s civil rights by the folks who are being called up. But I want to start with one thing you just said about the starting point for a lot of this. There are two different things that seem to be going on. One is, as you alluded to, this idea that we have operation Midway Blitz in Illinois and a similar operation in Los Angeles, and those were designed to do what? The initial operations, which are by ICE officials, I take it?

Bernadette Meyler: Absolutely. So the initial operations were designed to ramp up enforcement of immigration violations—enforcement against those who were considered, by the administration, to have violated immigration provisions and to be illegally in the country. And Portland has also been subject to this as well. And I think a lot of the rhetoric surrounding these operations, the Midway Blitz and the other operations, has been about targeting Democratic cities that are perceived to be harboring illegal immigrants. And so I think that it’s been very clearly targeted at particular cities that seem to be democratically oriented for additional immigration enforcement.

Pam Karlan: Yes, so you’ve got these cities and a change in immigration enforcement in which … I remember them doing immigration raids, ICE raids and the like at meat packing plants, but now they seem to be doing them right in the middle of cities. And these are cities where a large number of the citizens who live in these cities—people who are entirely entitled to be here—object to the raids. And so, for example, you have demonstrators, or you have various groups that show up at Home Depot lots to blow whistles when they see ICE agents coming. And you have a change in how ICE is enforcing things. And then you have some reaction by people beyond the people who are the actual targets of these ICE raids. But you have police departments in these cities, right?

Bernadette Meyler: Absolutely. And you’re referring to a number of different kinds of protests, or other actions, by locals in these cities who are objecting to the ICE enforcement actions. And one thing that’s been noteworthy in the California context is that not only have local police departments said that they are absolutely sufficient to deal with any problems that might come up—there was some violence in Los Angeles, but the police in Los Angeles said that they were handling it just fine. And then also Governor Newsom has said that the state is perfectly fine on its own without the deployment of the National Guard. So, this made the deployment of the National Guard in California even more unusual than it would otherwise have been because of the substance, because in general, when the National Guard is deployed or federalized, it’s with the consent of the governor of the particular state involved. And so, it was really quite surprising and shocking that President Trump decided to deploy the National Guard without even alerting Governor Newsom when he did it in Los Angeles.

Pam Karlan: Yes, and that raises something that I think probably a lot of our listeners don’t realize, which is, although it’s called the National Guard, it’s generally under the command of the governor of a particular state. The National Guard, and this goes back to your work as a legal historian, is the kind of successor to the militias that we had at the time of the framing, which were not designed to be a national standing army in some sense, but were designed to be under local control.

Bernadette Meyler: Absolutely. Yes. And so that was exactly the purpose of the militias, which became converted into the National Guard. So really, they’re local bodies. And another really striking episode here is the use of the Texas National Guard, outside of Texas. So, deploying the Texas National Guard to Illinois, for example, and threatening the deployment of the Texas National Guard in other venues as well. So not only is there this contravention of the respect for state sovereignty that happens by not consulting with the governor or other political entity within a particular state where the guard is being deployed, but there’s also this threat of basically the invasion of one state by another, and the use of the National Guard from … or the militia, the inherited militia of one state against another state.

Pam Karlan: Generally, and you just pointed to this: Generally, we wouldn’t think that the Texas National Guard would go into Illinois unless the governor of Illinois asked them there. We’ve had some huge disasters in America, hurricane Katrina and the like, I believe National Guardsmen and telephone linemen and state police came in from other states because of the sheer magnitude of the threat. But here, if the president hadn’t federalized the National Guard, we’d all understand that if Texas sends its National Guard to Illinois, that’s an invasion.

Bernadette Meyler: Absolutely.

Pam Karlan: And so here we have the president federalizing the National Guard and presumably bringing in National Guardsman from Texas because he’s under some doubt as to whether National Guardsmen from Illinois will perform what he wants them to perform.

Bernadette Meyler: Absolutely. Yes.

Pam Karlan: So, the president can only do this—if I understand the statute correctly—if there is an invasion or a rebellion or he’s unable to enforce the law. And who decides whether there’s an invasion, a rebellion, or an inability to enforce the law?

Bernadette Meyler: That’s the main crux of the ongoing legal battles both in California and in Illinois, and which have reached the Supreme Court already. The main provision that the administration is falling back on here is this idea that the president is unable to execute the laws with his normal forces because of the threat of violence against ICE officials in these various locations.

So the Ninth Circuit in California, or a panel of the Ninth Circuit, rendered a pretty deferential decision towards the president, in saying that the president gets a lot of deference in determining whether the regular forces are able to execute the laws or not now. So, the Ninth Circuit said that the president’s determination, as long as it reflects a colorable assessment of the facts in the law, within a range of honest judgment, is going to be allowed to stand.

Now, what does that mean exactly? What is a range of honest judgment? And then the Seventh Circuit also was fairly deferential, but not as deferential with respect to the meaning of the statute or what constitutes a rebellion, or what constitutes the inability to execute the laws. So, I think that so far the circuit courts have granted some deference, but not entire deference to the presidential determination of necessity, and there’s been a lot of back and forth about whether that deference should be more in terms of the facts on the ground or more in terms of the legal standard at issue.

Pam Karlan: Yes, this is one of those things that for generations we’ve had something that’s called the “presumption of regularity,” which is when the government acts, it’s acting honestly on the up and up. It’s actually considering the things it’s supposed to consider; it’s not considering the things it’s not supposed to consider. And one question I have for you is: how long are we going to have the presumption of regularity with this administration?

Bernadette Meyler: I think that’s a great question. I would hope that we can retain it, but it is difficult, especially when decisions don’t seem to be adequately explained or explained in ways that are consistent with earlier practice. So even if the president were to articulate a very broad understanding here of the inability to execute the law with regular forces, that understanding wouldn’t at all be consistent with past practice over the past several hundred years. Thinking about this as a new norm is particularly disturbing in that it would lead to the possibility of having continuous deployment of the National Guard—and if the Insurrection Act is used, other military throughout the United States. And already there’s been the prospect floated of having the National Guard monitor elections in different locales, so I think that the presumption of regularity is really under threat quite significantly at the moment.

Pam Karlan: Yes, the idea of having the National Guard monitoring elections, where does that come from?

Bernadette Meyler: One could imagine in certain circumstances … One time when the military was used under the Insurrection Act and that … in which the National Guard has also been used … was in terms of enforcing civil rights during the civil rights movement. So, when there were efforts to prevent Black children from going to school, and there was armed opposition on the part of states, then the military was called in to enforce civil rights against resisting states. That’s one example. If, for example, a state had said that they were just going to nullify an election, perhaps there would be a role for the National Guard in that context.

But that gets back to this question of what the trigger is, right? If there’s no evidence that there is any inability to enforce any federal law with respect to elections, then what would possibly justify the use of the National Guard in that context? Of course it has the function of intimidating a lot of voters, so that would be perhaps the benefit for those who are trying to suppress electoral turnout. But there’s no legitimate justification if there is no evidence of violation of the laws.

Pam Karlan: And there’s been a statute that’s been around for probably more than a century at this point, that essentially says that no officer of the Army or the Navy, and obviously they amended it to add in the Air Force, although they don’t directly say National Guard as well, is supposed to interfere in any way with elections because it’s such an ingrained part of American law and the background assumptions of American law, that the military is for fighting overseas, not for fighting U.S. citizens on U.S. soil.

Bernadette Meyler: Absolutely. And I would just raise here also the importance of the Posse Comitatus Act, which is another prohibition on the use of the military for domestic law enforcement purposes, and that’s been around since 1878. And that statute specifies that only if Congress very precisely permits the use of the military in a particular context for domestic law enforcement, can it be used. So that statute is in the background, both of the deployment of the National Guard and also of the possibility that Trump has floated a few times of invoking the Insurrection Act. And I think that…

Pam Karlan: Could you just stop there for a second to explain the Posse Comitatus Act and the Insurrection Act, which are …  ”Posse Comitatus” is not Latin for “insurrection,” so maybe separate those two out for our listeners so that they have a sense of what’s going on here.

Bernadette Meyler: Yes, the Posse Comitatus Act comes up in the late 19th century because there were a lot of discussions of the use of the military for domestic law enforcement in the aftermath of Reconstruction, and there was resistance against that to some extent. And so Congress passes this Posse Comitatus Act saying, look you can’t use the military for purposes of domestic law enforcement unless we specifically authorize it. So that general prohibition is in the background here. And then we…

Pam Karlan: I just want to stop you there for a second. We don’t, at this moment, have a congressional authorization for the president to use the military for domestic law enforcement.

Bernadette Meyler: No. The only law that would permit that is the Insurrection Act, which is something that has been around in different forms since early on in U.S. history.

But I think it has to be understood in relation to the Posse Comitatus Act. What the Insurrection Act does allow is for the use of the militia and armed forces to enforce federal authority. So, part of it says that … it has the language of rebellion, or it says if it’s impracticable to enforce the laws, then the president can call into federal service the militia and use it, as necessary, to enforce the laws or suppress the rebellion. Now, one noteworthy thing about the Insurrection Act is that it requires a proclamation before using it. So, if the president were to decide that the Insurrection Act had to be used, there would be a requirement that he make a proclamation to everyone in the area to disperse if they were engaged in what was thought of as in insurrection. So, there is this prerequisite for using it.

Pam Karlan: And insurrection … I’m now thinking back to January 6th, and one of the interesting things there is that the charges that were brought against people there were not insurrection charges. And if that wasn’t an insurrection, is anything that’s going on today even remotely an insurrection?

Bernadette Meyler: I think even the administration doesn’t think that’s a very plausible argument because they’ve only made it as a kind of secondary argument when going to court to defend these various actions. So, I think that it would more be the “necessity to enforce the laws,” right? That somehow law enforcement is not occurring properly and therefore it’s “necessary” to use the military to enforce the laws. But then I think that’s where we get back to this question of who decides that, and the excessive deference that some courts have granted to the presidential determination of whether there’s a problem currently with enforcing the laws.

I think that in light of the fact that there is this  Posse Comitatus Act that prohibits, explicitly, the use of the military for domestic law enforcement, courts really should read the Insurrection Act narrowly in relation to that because courts have to decide when the Insurrection Act winds up being incompatible with provisions of the  Posse Comitatus Act, or when the authorization provided by the Insurrection Act is insufficient to override the  Posse Comitatus Act. And I think that this goes back to an important Supreme Court decision, the Youngstown Steel case, and in that context president Truman had taken over the steel mills, claiming a kind of emergency wartime authority, and what happened there is that the court said, no, we don’t think that Congress has really authorized what you’re doing. In fact, there are ways in which it has not authorized what you’re doing and, in particular, the use of wartime powers domestically is very different than the use of wartime powers abroad.

So we have to think more narrowly about the use of wartime powers when they’re happening within the country.

Pam Karlan: Yes, it’s interesting also that the president seems to be taking the metaphorical idea of “war on X” to be literally a war on something. We’ve talked about the “war on poverty,” “the war on drugs” and the like. And what he’s done so far, and this may be taking us a little far further afield, but is to say, for example, that a gang has invaded the United States and therefore we’re entitled to engage in war powers. That there are drug smugglers on the high seas and we are entitled to blast them out of the water. He seems to be blurring the line between the things that are traditionally military exercises and the things that aren’t. The discussion where he said he thought it’d be useful to train American troops by having them go into American cities….

Bernadette Meyler: Absolutely. Yes, I think it is definitely blurring that line. One precedent might be the war on terror, where again, we had a sense of non-state actors being involved so similarly to the gangs that Trump is signaling. And also in that context, there was the use of drone strikes or other things abroad maybe similarly to the use of strikes on these boats in the context of Venezuela. But I think you’re absolutely right that it’s the terminology of the “war on X” then becomes a literal use of the military to actually effectuate that war. And that’s unusual. That has not really happened before.

Pam Karlan: And then just to back out another step: One of the things that was really quite striking that Secretary of Defense Pete Hegseth has done is essentially to remove all of the high-level Judge Advocate General lawyers within the military. How is that related to this stuff that’s going on?

Bernadette Meyler: Yes, I think that’s really important also because it gets back to what you were saying about regularity and where the rule of law is being undermined within even the military. One thing that I found striking from the district court opinion in the context of the LA deployment of the National Guard, was there was a very long discussion of how these National Guard members were trained. And a lot of the earlier training had been reversed about what they were allowed to do or not, and what counted as law enforcement activities and therefore were prohibited to them under this deployment versus what wasn’t. And so, I think, there’s an undermining of prior norms.

I think that the removal of these judges is similarly undermining these earlier norms. And one thing that I’ve found often in reading cases from military tribunals or other judges, is that even though it’s an executive branch activity, there’s a sense of really wanting to maintain a very strict rule of law and a very strict use of military justice. And I think that undermining the personnel who are implementing that and making it more flexible is all undermining the same regularity.

Pam Karlan: Yes, it is a worrisome thing. And as you say, the military is generally not trained for … and certainly the National Guard, is not generally trained for everyday law enforcement. One of the things that I was thinking of with this is: last term at the Supreme Court, the court decided a case called Barnes v. Felix, which was about when police could use deadly force. It was a case that involved a police shooting. And the court said there that the “moment of threat” rule, which says you just look at the moment when the officer uses the deadly force, is too narrow. You need to ask whether the officer put themselves in a position where they would have to use deadly force in deciding whether that deadly force was reasonable or not. The old cases like this involved things like police departments have given up most of them on high speed chases, because you’re more likely to kill a bystander or kill somebody who actually you’re chasing because you think they …  you tried to pull them over and they fled, but they might not be particularly dangerous otherwise.

And I just worry that if the military is engaged in actions in American cities, they’re not trained for this at all. They’re trained for lethality and police departments are now much more trained for community policing and de-escalation and the like. And it does worry me that we will find ourselves in a world in which the presence of ICE agents who are engaged themselves in a variety of very aggressive behavior, combined with untrained nervous National Guardsman on the street … think back to Kent State.

Bernadette Meyler: Absolutely and I think part of what you’re also implying is that there would have to be extremely careful training for the regular deployment of the National Guard for long periods within cities because they’re just not going to be accustomed to that kind of deployment. There’s going to be a lot of extra training, and we don’t have any evidence that any of that kind of training in de-escalation or anything of the sort is happening. And in fact, to the contrary. To the extent that they are being trained, there seems to have been some overstepping of the line prohibiting them from normal law enforcement duties. So, I think that you’re right to be very concerned about that.

Pam Karlan: If a National Guardsman engages in an excessive use of force, shoots somebody without real justification or the like, what happens after that?

Bernadette Meyler: It’s a great question. I think that there needs to be some other judicial challenge to the deployment of the Guard in this instance. But then there’s also a question about: what are the limits of whether they can be sued or not. There’s probably some form of immunity that would adhere if they engaged in even illegal or civil rights … not protective behavior and, plus to the extent that anyone might be prosecuted or not by either military authorities or by civil authorities, we have seen much more recently a kind of unitary executive model whereby Trump is insisting on personally approving various kinds of prosecutions, or personally approving the agenda for law enforcement. So I doubt that anyone who actually did commit any kind of violation in that context would be brought to justice under the current Justice Department.

Pam Karlan: And we’re now waiting to see what the Supreme Court is going to do in the Illinois case. Do you have a sense of where the Supreme Court is on these issues?

Bernadette Meyler: I’m not sure what to think with regard to where to think the Supreme Court will end up here. I think what will be interesting to look at is the extent to which they affirm or don’t affirm the degree of deference or go even further in terms of a degree of deference towards the president.

So, the administration has been arguing that the courts actually have to grant complete deference to the president under this very early case, Martin, which I think is distinguishable in many ways, but that’s their argument. The Ninth Circuit wound up in a kind of intermediate moment of saying that there’s some deference, but not entire deference. But will the courts follow what I think should be the principle, which is that the judiciary should determine what the meaning at least is of “inability to enforce the laws” or of “rebellion?” And then within the scope of that, the president can make some determination. I don’t know which of those three options the Supreme Court will ultimately take.

Pam Karlan: It’s interesting because of course the district judges who are granting the stays in the first instance are: “I’m looking out the window and I’m just not seeing this stuff.” They’re on the ground, they’re equipped to make factual findings, and yet at the end of the day, the Supreme Court, which is not in Chicago, not in Los Angeles, doesn’t have the ability to actually find facts, is going to be deciding on the basis of a pretty skimpy record, and often deciding not just about whether to grant a stay or the like, but really reaching almost the merits of: Can the president do this?

Bernadette Meyler: Absolutely. And one thing I found quite striking and somewhat disturbing about the Ninth Circuit panel decision granting substantial deference to the president, was that it also, at the same time, questioned the district court’s determination of facts. Whereas usually, there would be fairly substantial deference on the part of an appellate court towards the district court’s factual findings. It seemed like a reversal of the normal procedure in terms of how deferential higher courts are to the district court’s findings of fact.

Pam Karlan: Yes. I expect we’ll find out fairly soon from the Supreme Court what it thinks, and then I’d love to have you back to do a … postmortem is not a word I’d like to use here but do an additional discussion of where we are.

I want to thank Bernie Meyler for joining us today. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.