156. Federalizing the California National Guard

President Trump has federalized 2000 National Guard troops pursuant to 10 U.S.C. § 12406, which provides, among other things, that “when the President is unable with the regular forces to execute the laws of the United States . . . [he] may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to . . . execute those laws.”1

As the brevity of this statute should make clear, this provision provides no additional substantive authority that the federal government did not already possess. There’s nothing these troops will be allowed to do that, for example, the ICE officers against whom these protests have been directed could not do themselves. And because of the Posse Comitatus Act, the reverse is not true; there is plenty that these troops cannot legally do that the ICE officers can (once they are federalized, National Guard troops become functionally indistinguishable from federal regulars for purposes of the Posse Comitatus Act).

Thus, nothing that the President did Saturday night would, for instance, authorize these federalized National Guard troops to conduct their own immigration raids; make their own immigration arrests; or otherwise do anything other than, to quote the President’s own memorandum, “those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection and safety of Federal personnel and property.”