CALBUZZ EXCLOO--Gov. Jerry Brown’s administration, alarmed by a report of a draft plan to mobilize 100,000 National Guard troops to round up unauthorized immigrants, has quietly concluded that the Trump White House legally cannot take command of California’s National Guard short of declaring immigration to be an “invasion.”
White House Press Secretary Sean Spicer on Friday said the report by the Associated Press about plans to dragoon the Guard was “100% not true. It is false. It is irresponsible to be saying this. There is no effort at all to round up, to utilize the National Guard to round up illegal immigrants.”
Of course, Trump famously told Fox News bromance buddy Bill O’Reilly recently that California is “out of control” on immigration. So even the suggestion that Trump might try to seize command of the California National Guard was disturbing enough to cause Brown legal advisers to analyze the state’s options, should Trump seek to activate the Guard as a deportation force.
Don't Tread on Me. In the normal course of events (how fondly and wistfully we remember such bygone days) National Guard troops are under the command of the governor of each state.
At the same time, the Posse Comitatus Act of 1878 prevents the use of federal armed forces (except the Coast Guard) for peacetime law enforcement within the United States. And under the National Defense Authorization Act of 2008, the president can only call up the National Guard for active duty for a congressionally sanctioned national emergency or war.
Moreover, according to a high-ranking source in the Brown administration, Trump “would have to get the consent of the governor” – something Brown would not provide.
While Brown has not spoken on the issue directly, at least three Republican governors, in Utah, Arkansas and Nevada, have objected to the suggestion that their National Guard troops should be used as a deportation force.
Under federal law, whenever:
(1) The United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) There is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) The President is unable with the regular forces to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.
Stay Off Our Lawn! California officials thereby have concluded that the state cannot be compelled to use its police or military forces for law enforcement purposes; in their analysis, controlling immigration is a federal responsibility, not a matter for state or local law enforcement.
On the other hand, Homeland Security Secretary John Kelly last week signed new guidelines empowering federal authorities to aggressively detain and deport unauthorized immigrants.
“The surge of immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States,” Kelly stated in the guidelines.
According to the Washington Post, Kelly cited a surge of 10,000 to 15,000 additional apprehensions per month at the southern U.S. border between 2015 and 2016.
Gov. Brown’s lawyers don’t believe that rationale would hold up in court as an “invasion” justifying federalizing the Guard. And without consent of the governor, they have concluded, Trump cannot deploy California National Guard troops as a border-control or deportation force.
By now, of course, we’d be surprised by exactly nothing that President Screw Loose might attempt to do.
(Jerry Roberts is a California journalist who writes, blogs and hosts a TV talk show about politics, policy and media. Phil Trounstine is the former political editor of the San Jose Mercury News, former communications director for California Gov. Gray Davis and was the founder and director of the Survey and Policy Research Institute at San Jose State University. This piece appeared originally in CalBuzz.)