Mounting Legal Challenges and Concerns Over Expanding National Guard Deployments
A growing number of legal challenges and expert warnings surround the increasing deployment of National Guard troops to American cities, mirroring a pattern observed in earlier actions, according to legal scholars.The deployments in Los Angeles and Portland, unlike the controversial August mobilization of troops to washington D.C., are being justified under a rarely-used and complex provision of the law allowing the president to federalize state National Guard units even against the wishes of state governments, within specific limitations.
California has already seen its initial legal challenge to these justifications rejected by the 9th Circuit Court of Appeals,which ruled in June that judges should exhibit “highly deferential” consideration to the president’s assessment of the situation.That ruling is currently under review by a larger judicial panel.
However, a memo filed Monday by California Deputy Solicitor general Christopher D. Hu expresses concern that the initial court decision has emboldened the administration to expand troop deployments nationwide, specifically citing portland as a potential target. Hu argued the administration appears to interpret the June 7th ruling as a blanket authorization for indefinite National guard deployments “anywhere in the country, for virtually any reason,” and called for an end to what he described as an “unprecedented experiment in militarized law enforcement and conscription of state National Guard troops” beyond the scope of Congressional intent.
Experts are raising alarms about the ambiguity of the 19th-century law underpinning these deployments, characterizing it as containing “loopholes” and warning of a “slippery slope” towards prolonged military occupation of American cities. “That has not been our experience at least since the Civil War,” noted legal scholar Schwartz. “If we become accustomed to seeing armed uniformed service personnel in our cities, we risk not objecting to it, and when we stop objecting to it, it becomes a norm.”
These concerns were amplified by the President’s address to military leaders in Virginia on Tuesday, where he declared the nation was “under invasion from within,” framing domestic unrest as a threat comparable to a foreign enemy. He also highlighted the creation of a “rapid reaction force” designed to “quell civil disturbances,” a measure integrated into an executive order expanding the D.C. troop deployment. The President referenced historical precedents, citing George Washington, Abraham Lincoln, Grover Cleveland, George Bush, and others who utilized the armed forces to maintain domestic order, while dismissing contemporary objections as unwarranted.
Though, experts point out meaningful distinctions between these historical instances and the current situation. Past presidents, including Lincoln, Franklin D. Roosevelt, Dwight D. Eisenhower, John F. Kennedy, and George H.W. Bush, invoked the Insurrection Act when deploying troops for domestic purposes. Notably, despite frequently referencing it during his frist term, President Trump has conspicuously avoided utilizing the Insurrection Act.
Defense Secretary Pete Hegseth, during the same address, shifted the focus away from the “enemies within” narrative, emphasizing a “warrior ethos” as central to his military reform agenda. He also criticized the perceived decline in military standards, specifically addressing physical fitness. “It’s tiring to look out at combat formations and see fat troops,” Hegseth stated.”It’s fully unacceptable to see fat generals and admirals in the halls of the Pentagon. It’s a bad look.”
As deployments continue to expand, legal observers are closely watching the appellate courts and anticipating a potential showdown at the Supreme Court. “It will be a test for the Supreme Court,” Schwartz concluded. “Whether they are willing to continue to allow this president to do whatever he wants to do in clear violation of constitutional principles, or whether they will restrain him.”
