President Donald Trump would likely face legal scrutiny if he tried to send the National Guard into cities like Chicago or New York without support from governors in those states, legal analysts told Newsweek.
Why It Matters
Trump has floated the idea of federalizing the National Guard to deal with crime in large cities run by Democrats after deploying the National Guard in Washington, D.C. earlier in August.
The idea has sparked backlash from critics concerned about executive overreach, arguing that the U.S. Constitution only allows the president to usurp National Guard control from governors in very narrow circumstances. Proponents of using the National Guard to deal with crime say it is necessary to protect public order.
What To Know
Trump told reporters last week that Chicago could be the next city to see the deployment of federal troops to deal with crime after his deployment of D.C.’s National Guard earlier in August.
“Chicago’s a mess, you have an incompetent mayor, grossly incompetent,” Trump said.
The comments quickly sparked rebuke from Illinois leaders.
“The safety of the people of Illinois is always my top priority. There is no emergency that warrants the President of the United States federalizing the Illinois National Guard, deploying the National Guard from other states, or sending active duty military within our own borders,” Governor JB Pritzker, a Democrat, said in a statement.
Newsweek Illustration/Getty Images/AP Newsroom
Legal analysts told Newsweek thatTrump’s authority to send in the National Guard to deal with crime in these cities will face many legal challenges.
“It’s a very unique set of authority he has because D.C. is not a state. If he goes to Chicago or New York or Baltimore or any other city, he cannot do what he is doing in D.C. unless he is invited to by the governor. In those cities, of course, there is no way that is going to happen,” William C. Banks, a law professor at Syracuse University, told Newsweek.
Banks explained that the District of Columbia Home Rule Act allows Trump to call the guard into the district—but only governors can do so in their states, except in specific circumstances. That may include the authority granted by the Insurrection Act, which allows the president to federalize the National Guard when states cannot control rioting and need federal troops to quell a disturbance, he said.
Trump could also send federal troops into the state under Provision 12406, which allows the president to send in federal troops or the National Guard to protect federal assets, but this would not allow him to use them for crime-fighting purposes, Banks said.
If Trump sends the National Guard into cities without the consent of governors, state leaders would be able to file court challenges, as California Governor Gavin Newsom did to block Trump from federalizing the National Guard to quell protests and riots over his immigration policy in Los Angeles earlier this summer, Banks said.
“Governor Newsom’s playbook is probably one that would be followed by other governors,” he said.
Banks warned that the presence of the military in the streets could have a “corrosive” effect on the country in the long term.
“One of the tenets of our democracy for 250 years has been that we want our people to be able to freely exercise their freedoms without the presence of the military on our streets,” he said. “We’ve always entrusted law enforcement in the United States to civilian police. They’re members of our community. They’re our friends and neighbors. They wear police uniforms.”
Legal Expert Slams ‘Authoritarian Power Grab’
Paul Gowder, a professor of law at Northwestern University, told Newsweek sending National Guard troops into cities would be an “authoritarian power grab.”
“Beyond the questions of the legality of their deployment at all, I think there’s an even bigger constitutional problem with the legality of what they would actually be doing. The federal government doesn’t have the authority to regulate ordinary street crime in a city. (D.C. is special because it’s a federal enclave),” Gowder said. “Not even Congress has that authority, let alone the president.”
Even if Trump were to invoke the Insurrection Act, the troops would only be authorized to enforce federal law, which does not “extend to the day-to-day ‘law and order’ stuff that Trump wants to send in the troops for, not in a state with its own sovereignty,” he said.
Former federal prosecutor Gene Rossi told Newsweek the “seminal risk” of sending in National Guard troops to these cities is that the public will “begin to see the National Guard deployments as political stunts and Shiny Objects.”
“Where was the National Guard on January 6, when President Trump was gleefully watching the Capitol riots from the Oval Office?” he said.
He warned that if elected leaders’ response seems “tepid or soft,” Trump may “just continue to expand his use of the National Guard.”
Can Governors Federalize National Guard Over Governor Objections?
Michael McAuliffe, a former federal prosecutor and former elected state attorney, told Newsweek the basis for calling the National Guard is key to the legality.
“Using the National Guard to act as law enforcement without a more pressing reason than to help fight crime (without some type of repeated acts of mass violence or similar uncontrollable situation) likely would be viewed by courts with skepticism,” he said.
“However, if a president federalizes a state’s National Guard for a core military purpose, that act might well be viewed with more deference.”
Former federal prosecutor Neama Rahmani said presidents only rarely mobilize the National Guard over a governor’s objection, but there have been instances of this throughout U.S. history. He specifically pointed to desegregation enforcement after Brown v. Board of Education, as well as enforcing the Civil Rights Act and protecting protesters.
“Historically, courts have given the president board discretion once the Insurrection Act has been invoked, especially if there is evidence of civil unrest or danger to federal officials,” Rahmani told Newsweek.
What People Are Saying
Former federal prosecutor Barbara McQuade told Newsweek: “The president would need some specific authority to send the National Guard to other cities. In Los Angeles, he declared an emergency on the basis of a rebellion during protests against immigration enforcement. In Washington, D.C., he used a statute that is specifically unique to that city as the seat of national government.
“He would need to find some sort of emergency basis, such as insurrection or rebellion, to activate the National Guard in other cities. Because we have seen no escalation of violence in any of these cities, Trump would be on questioned legal ground. Cities could file lawsuits to challenge Trump’s orders.”
Former federal prosecutor Gene Rossi told Newsweek: “Another risk is that a majority of the public will firmly conclude that the president has appointed a plethora of sycophants and Roy Cohns, including the secretaries of Defense and Homeland Security and the director of the FBI, all of whom lack the intelligence and courage to push back from his King Lear-like capriciousness. If the president threw in some cities in the Southern states with Republican mayors and governors, then the majority of Americans may not feel that this is raw politics and retribution.”
Northwestern University Professor Paul Gowder told Newsweek: “We’re in uncharted territory, and probably for good reason. No president has ever tried to do anything like this. While presidents have invoked the Insurrection Act to bring in the military to address domestic unrest, this has typically been in response to actual rebellions and various other kinds of mob action (plus some really ugly abuses in the early days of the labor movement against strikers), and hasn’t been against the will of state governments.”
Chicago Mayor Brandon Johnson told NBC News over the weekend: “This is not the role of our military. The brave men and women who signed up to serve our country did not sign up to occupy American cities.”
What Happens Next
Trump has not rolled out specific plans for sending troops into cities.
Meanwhile, legal challenges to his efforts to do so in Los Angeles during the immigration protests continue to move through the courts. Banks said this may be an issue the U.S. Supreme Court could eventually weigh in on.
McAuliffe said how the courts assess the Trump administration’s assertions of authority “will continue to be the focus of intense litigation.”
“The risk exists that if the assertion of presidential power is always viewed as sufficient based on the mere claim of authority, there might be guard members stationed on street corners in dozens of U.S. cities. America will need to decide whether armed military and other forces patrolling the streets in masks is an acceptable fact of life,” he said.