The "Omnicause" Shall Not Prevail Over the Constitution

In the face of interference with the enforcement of federal immigration law and threats to federal Immigration and Customs Enforcement (ICE) and other government personnel, President Trump issued an Order on June 7 that called members of the California State National Guard into federal service. The purpose of this deployment, Trump declared, was to “temporarily protect” federal agents in Los Angeles “and to protect Federal property, at locations where protests . . . are occurring or are likely to occur based on current threat assessments and planned operations.”  Over the weekend, approximately 300 members of the Guard were deployed into the city, and Trump stated that he had authorized up to 2,000 to be deployed if necessary. Trump’s action was immediately denounced by California Governor Gavin Newsom, who declared that he would file a lawsuit to block what he called “an illegal act, an immoral act, an unconstitutional act.”  

Since that initial deployment, the Defense Department announced the activation of approximately 700 Marines who had been placed on alert over the weekend. Soon after, Trump called another 2000 California State National Guards into federal service, creating a force of some 4700 altogether to protect federal agents and property in Los Angeles. Federal officials have said that these forces are tasked with protecting federal buildings and personnel only and will not patrol Los Angeles’s streets or assist police by detaining protesters.

“Peaceful” Protests?

The rioting was triggered by the efforts of ICE and other federal agencies to carry out their enforcement responsibilities in the Los Angeles area. At first, dozens of protesters gathered outside the ICE detention center, demanding the release of 44 people ICE had arrested on Friday as illegal immigrants. ICE had also arrested at least 118 allegedly illegal aliens across the city over that week. (There are an estimated 900,000 illegal aliens in Los Angeles.)  

Leading Democrats claimed that the events that had prompted Trump sending federal forces into Los Angeles were “peaceful protests.” Newsom stupidly asserted that “[w]e didn’t have a problem until Trump got involved,” and Representative Maxine Waters affirmed on Monday that “no violence” had taken place. But the evidence clearly proved otherwise. Even Los Angeles Mayor Karen Bass acknowledged that the two days of protests that preceded Trump’s intervention had not been “peaceful.”   Videos on local news showed thousands of protesters taking over the 101 Freeway in downtown Los Angeles. Some of them threw rocks and Molotov cocktails at police cars with stranded police officers in them. Before Sunday night, rioters had destroyed several State highway patrol vehicles by throwing hundreds of rocks at them from the freeway’s overpasses.

On Sunday, Los Angeles Police Chief Jim McDonnell described protesters breaking up cinder blocks with hammers to hurl them at police. He added that “[t]onight we had individuals out there shooting commercial-grade fireworks at our officers that can kill you. ” Despite that level of violence, the Los Angeles Police Department made only 39 arrests on Saturday and Sunday. McDonnell said that “[t]his violence I’ve seen is disgusting . . . What we saw the first night was bad, but what we’ve seen subsequent – that is getting increasingly worse and more violent.”

Federal officials also complained of the LAPD’s failure to protect federal law enforcement agents. Homeland Security Secretary Kristi Noem said that “[w]aiting several hours for LAPD to show up – or them telling us that they’re not going to back us up until they have an officer in a dangerous situation – is something that just isn’t workable when you have violent protests going on.”  

Trump’s deployment of the State’s National Guard raises both legal and political issues.

Legal Issues

It is bedrock that the President has a sworn constitutional duty to enforce federal law. As President George Washington put it during the “Whiskey Rebellion” of 1791, “it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to” that duty. The President’s enforcement duty emphatically includes federal immigration law. President Trump must protect federal agents, including ICE officers, from violence or the threat of violence when they are engaged in the discharge of their enforcement functions.  

Candidate Donald Trump made it clear repeatedly during the 2024 presidential race that, if elected, he would enforce federal deportation laws vigorously. That promise was essential to his electoral victory. If rioting in the streets succeeds in preventing the Trump Administration from carrying out the programs that it was elected to pursue, then this country might as well not bother with presidential elections. The crisis in Los Angeles is thus not merely a battle of wills between a President and a recalcitrant State governor. It is a test of whether presidential elections in this country matter.

Among the legal means available to the President for enforcing federal law against illegal interference is his authority, in proper circumstances, to use military force, including the deployment of State National Guards when summoned into federal service.

The Constitution’s “Militia Clauses” provide that the President, with congressional authorization, may call a State’s National Guard (which originated as the “militia”) into federal service. As the Supreme Court noted in 1820, Congress’s powers over the militia “may be exercised to any extent that may be deemed necessary by Congress.”  And Congress has exercised those powers to allow the President to “federalize” the State National Guards. As the Supreme Court explained in the 1990 Perpich case, “[s]ince 1933, all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity, they became a part of the Enlisted Reserve Corps of the Army.”

President Trump’s June 7 Order federalizing up to 2000 State National Guards and deploying them to protect threatened federal personnel and property relied on congressional authorization for that purpose. The statute cited in his Order, 10 USC 12406, states that he “may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel [an] invasion, suppress [a] rebellion, or execute those [federal] laws.” The President’s Order specified that facts on which his exercise of authority was based:  “[n]umerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal law [by ICE and other agencies]” and that threaten “damage to Federal immigration detention facilities.”  

Critics might contend that the Order did not satisfy the statute’s antecedent conditions for federalizing the Guard. But the President is the judge of that. Trump can, e.g., reasonably find that there is a “danger of rebellion” against federal authority, especially against the backdrop of State and local authorities’ inability – or unwillingness – to protect ICE personnel and property and their efforts to impede ICE’s enforcement of the law.

Moreover, Trump did not need Newsom’s sign-off to federalize the California Guard. On March 20, 1965, President Lyndon Johnson issued Executive Order 11207, authorizing the Defense Department to federalize “any or all of the units or members” of the Alabama State National Guard because of “the likelihood of domestic violence and obstruction of the execution and enforcement of [federal] laws.” Johnson took this action to protect civil rights activists planning a march from Selma to Montgomery after Alabama Governor George Wallace told him that he was “unable and refuses to provide for the safety and welfare” of the marchers. The take-away: the President may federalize a State National Guard without the Governor’s approval to prevent the threat of domestic violence and the obstruction of federal law enforcement when the Governor is “unable or unwilling” to take adequate steps.

The statute indeed says that an Order “shall be issued through the governor[].” But this is not a substantive rule giving Newsom veto power over Trump’s action. If it were, it would constrain the President’s power to respond to emergency situations in a constitutionally dubious way. If anything, it seems to be a mandate to the Governor to serve as the conduit for a presidential Order.

Nonetheless, Governor Newsom challenged the Order as a violation of “State sovereignty.” This is fatuous. The States have no reserved right under the Tenth Amendment or the principles of federalism to allow federal law enforcement agents and property to be exposed to the violence of rioters with whom those officials openly sympathize.

Newsom’s conception of State sovereignty runs afoul of well-established constitutional law. In 1879, the Supreme Court held it to be

an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent.

Or, to take a more recent example, Newsom can find a kindred spirit in Texas Governor Greg Abbott, who denied, in the name of states' rights, the Biden administration’s authority to control the border with Mexico. Abbott’s defiance prompted prominent Democrats to urge Biden to federalize the Texas State National Guard and deploy them to remove the razor wire and other obstacles to passage that Abbott had placed in the middle of the Rio Grande. Did those Democrats expect that Abbott would give Biden a sign-off?

The Political Fallout

It is too early to predict the political fallout from this rapidly evolving controversy. But if Trump stands firm, focuses on protecting federal ICE agents in carrying out their mission in LA, and leaves the task of riot control to the local authorities, he will prevail.

The Administration has made it clear that it will not permit a replay of the George Floyd riots of 2020. The country's mood has changed since then. As last November’s election showed, most Americans broadly favor Trump’s deportation policies. They are repelled by street violence, accompanied by attacks on the police, the throwing of Molotov cocktails and cinder blocks, looting, the waving of foreign flags, and the burning of our Nation’s flag. (A YouGov poll conducted on Monday found that just 36% of respondents had a favorable view of the protests.)  And Trump himself has changed. He will no longer yield to the breakdown of law and order in Democratic-governed States and cities: there will be no more law-free zones for BLM or Antifa-style mob violence. The Democrats will once again find themselves the apologists for criminality, rage, and lawlessness.

Robert Delahunty is a Washington Fellow of the Claremont Institute Center for the American Way of Life.