4,000 National Guard soldiers have been deployed to Los Angeles. President Donald Trump and Secretary of Defense Pete Hegseth said more troops may be deployed to other states.
However, the U.S. Constitution makes it clear that members of the military are not law enforcement officers, therefore, what duties can they perform? And how does that change if the Insurrection Act is invoked?
To gain more perspective on the issue, Straight Arrow News spoke with Jonathan Molik, an intelligence officer with the New York Army National Guard and a former law enforcement officer.
Molik said that while California’s elected officials may object to President Trump federalizing thousands of its state’s National Guard members, the move isn’t necessarily illegal, unlawful or even unprecedented.
Is it legal for Trump to deploy National Guard troops?
“From a legal perspective, it does seem to fit within what we would call the four corners of the paper,” Molik said. “They have the inherent right to self-defense, and they have the authority to protect federal property and those federal agents that are operating within the law.”
At the time of publishing, Molik said the federalized soldiers are acting in a purely defensive capacity, what the military refers to as “Defense Support to Civil Authorities.” That means they aren’t allowed to participate in what would generally be considered law enforcement activities, such as surveillance, arrests, or other “active approaches” to enforcing the law.
“They’re not going to be involved in handcuffing people, arresting them, processing them, putting them into vehicles, those types of actions that you’d consider an active policing operation,” Molik explained.
Guardsmen know they are not police officers
That separation between the military and law enforcement is something Molik said gets drilled into every soldier in the National Guard.
“We are very well versed on what we can do and what we can’t do,” Molik said. “We really take a lot of pride in ensuring we’re on the right side of the law. We’re not just willing, now that we’re working for POTUS, we’re not just out there willy-nilly like, ‘Screw it, we’re going to do whatever we want.’ That is antithetical and anti-cultural to what the military is.”
Trump invoked his authority under Title 10 of the United States Code to deploy the National Guard to Los Angeles. It’s the same authority that grants presidents the ability to deploy National Guard soldiers overseas and essentially puts them in the same category as any other active-duty soldier. They report ultimately to the president of the United States and fully rely on the federal government for support and logistics.
What happens if the Insurrection Act is invoked?
While the federalized troops are currently involved in defensive operations, that could change if Trump invokes the Insurrection Act.
The law dates back to 1807 and gives the president the ability to deploy the National Guard in order to enforce laws or suppress rebellion in specific situations when the ordinary course of judicial proceedings fails.
It’s unclear what legal authorities the troops Trump deployed would be given because, as Molik said, the Insurrection Act is a rarely invoked legal authority.
“That’s a challenging discussion to have because there’s not a lot of legal precedent there. So, what I suspect would happen is that there would be an opening of authorities a bit, maybe a bit more support to law enforcement,” Molik said. “I can’t guarantee that, but from a legal perspective, it would certainly make for a more clean break, if you will, because the Insurrection Act is kind of a, you know, ‘during an emergency break glass here’ kind of a function.”
Molik pointed to the broad authority potentially given to the military under the Insurrection Act as one of the main reasons why it’s so rarely invoked.
If the current administration did make use of the act, Molik said, “They certainly would get a lot of pushback in addition to what they may be receiving today because it was written for some pretty specific actions.”
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Author: Matt Bishop
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