The explicit purpose of the rioting and mayhem is to thwart the enforcement of federal immigration laws.
The explicit purpose of the rioting and mayhem is to thwart the enforcement of federal immigration laws.
T here are colorable political arguments against President Trump’s deployment of military forces in response to the rioting, arson, and potentially lethal attacks on law enforcement agents in California. Those, however, are muted by the left’s longstanding endorsement of political violence and illegal immigration. In any event, the legal complaints against Trump’s response are specious.
As our editorial details, the president has broad authority, under Article II and statutory law, to use force as necessary to suppress unrest that creates violent civil strife and impedes lawful federal functions. Again, the real contention against his calling at least 2,000 California National Guard personnel into service (with nearby Marines on alert, and an open-ended authorization of more armed forces) is political: Having mass-pardoned rioters who stormed the Capitol and injured scores of police officers (all in a tawdry, Justice Department–supported project to promote the false claim that Donald Trump won the 2020 election), this president is morally ill-suited to invoke extraordinary powers to put down political violence that obstructs federal functions. Implicit in that contention, though, is that these extraordinary powers are, in fact, embedded in our law.
Trump invoked Section 12406 of the armed forces laws (Title 10, U.S. Code), which authorizes the president to call state National Guard forces into federal service whenever “there is a rebellion or danger of a rebellion against the authority” of the United States government, or when such unrest prevents the execution of federal law by regular law enforcement agencies.
Prior to the Democrats’ overwrought response to the events of January 6, 2021 — a three-hour riot in which no security personnel were killed (although, as noted above, hundreds were assaulted and over 140 injured) — it might have been possible to have an edifying discussion about whether what’s now happening in Los Angeles rises to the level of a rebellion. Like insurrection, the term rebellion in our history has been reserved for large-scale, organized uses of force that, in time and space, bear a resemblance to the Civil War (which itself was frequently called “the rebellion”). With Democrats having mulishly insisted on hyperbolizing the Capitol riot into an “insurrection” that caused the deaths of several police officers (again, the actual number was zero), that ship has sailed.
Nevertheless, such a debate here would be academic. As the excerpt of the statute quoted above elucidates, there need not be an actual rebellion — only the danger of one — for the president legitimately to call the Guard into federal service. Moreover, the explicit purpose of the ongoing rioting and mayhem is to thwart the enforcement of the federal immigration laws. Section 12406 expressly authorizes the use of military force when ordinary law enforcement has been violently prevented from carrying out federal functions. And forcible attacks are being trained on federal facilities. As the Biden Justice Department and its special counsel, Jack Smith, constantly (and correctly) reminded us after the Capitol riot, the federal government has a high interest in the protection of federal facilities and personnel.
Section 12406 dictates that “Orders for [purposes of calling the Guard into federal service] shall be issued through the governors of the [relevant] States.” This is apparently the bone of contention for California’s Governor Gavin Newsom. A Democrat obviously planning a 2028 White House run, Newsom is persisting in his party’s penchant for siding with illegal aliens and their radical allies against everyday Americans and law enforcement — the penchant largely responsible for Trump’s improbable political comeback and 2024 victory.
I doubt Newsom’s claims will get much traction. Section 12406 neither requires the president to seek a governor’s permission to federalize the National Guard, nor gives a governor a veto over such federalization. In addition, Trump’s order expressly directs the secretary of state to coordinate with the governors of the relevant states. Newsom is entitled to nothing more. It is in his interest, the president’s interest — California’s and the nation’s interest — that the state and federal authorities work together to restore order.
The political combat should be suspended while Los Angeles is burning. If Democrats were serious about their post–January 6 paeans to besieged law enforcement agents (and if they are serious about getting off the wrong side of 80-20 political issues), they should reconsider their allegiances. Newsom would have the moral high ground from which to complain if his and his party’s policies were not responsible for the collapse of border security, on display nowhere more than in Southern California. You can’t prattle on about the “rule of law” while endorsing “sanctuary cities” — designed as sanctuaries from the rule of law. Pick a side.
Is the Trump administration’s latest tack of raiding businesses at which illegal aliens are working a poorly conceived departure from the prioritization of deporting “criminal aliens” (i.e., aliens who commit ordinary criminal offenses, especially violent ones, beyond the lawbreaking necessarily involved in illegal immigration)? Maybe so. Personally, I would rather see the administration pursue the operators of businesses who knowingly employ illegal aliens; that would dry up the employment opportunities and give the aliens themselves an incentive to self-deport — a better use of scarce law enforcement resources.
But again, that’s a political point, not a legal one. And since, time after time, Democrats abet and advocate for even the criminal aliens, no sensible person wants to hear their pleas on behalf of “law-abiding” illegal aliens (pardon the oxymoron). Not when a city is under siege and the combustible alliance of radical leftists and pro-Hamas Islamists is unabashedly leading the violent uprising.
Finally, if you’ll indulge a thought from the mists of time, I once prosecuted terrorists by invoking the seditious conspiracy statute (Section 2384 of Title 18, U.S. Code). Because it’s a Civil War–era law, there is, as with rebellion and insurrection, much room to debate whether particular violent actions rise to the level of “levying war against” the United States, or of trying to “overthrow, put down, or destroy by force” the federal government. Yet, the statute is broader than that, criminalizing forcible opposition to the government and violent action to “prevent, hinder, or delay the execution of any law of the United States.”
That is to say, federal law is very clear that the president has the authority to use whatever force is required to protect federal functions and facilities. And here, unlike the Capitol riot scenario, there is no ambiguity about whether the rioters believe they are acting at the behest of the government’s highest official (a complication that I believed was a flaw in the Biden DOJ’s post–Capitol riot seditious conspiracy cases). Comparatively speaking, seditious conspiracy prosecutions against the Los Angeles rioters should be a lay-up.
To be sure, there is a hollow ring to the condemnations against rioting and attacks on law enforcement by the president and his top law enforcement officials thanks to the mass clemency granted to Capitol rioters. (I am not talking about the hundreds of peaceful January 6 demonstrators who should not have been charged; just the hundreds of violent ones who should still be in prison.) Because, like Democrats, Trump officials have selective outrage when it comes to political violence, they are vulnerable to the criticism that they are politicizing law enforcement — even when, as here, they are doing what must be done. Still, however you sort all that out, there is no doubt that federal law supports Trump’s deployment of military forces under the circumstances.
Is there danger that there could be a Kent State–like incident that could make matters much worse than they now are? Of course. The president and Defense Secretary Pete Hegseth must be crystal clear about the rules of engagement regarding the use of force, and the objective of ending the violence, not exacerbating it. The Justice Department should aggressively prosecute people who participated in or plotted to carry out forcible attacks.
Meanwhile, Democrats who wondered aloud where the hell the armed forces were while overwhelmed police failed to prevent the Capitol riot should consider that maybe, just maybe, the violent radicals are the real culprits in this one.