I’ve been trying to wrap my head around the current legal restrictions on federalizing National Guard. It’s confusing. Beginning with the first Militia Acts in 1792, presidents required permission of a state governor or legislature to federalize the state militias “in times of invasion.” Also,
… in case of an insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such state, or of the executive (when the legislature cannot be convened) to call forth such number of the militia of any other state or states, as may be applied for, or as he may judge sufficient to suppress such insurrection.
The first actual federalizing of state militias was to put down the Whiskey Rebellion, in 1794. The militias were officially organized into the National Guard in 1916, but there have been a lot of additions to federal code about the Guard since then.
Fortunately I found a handy-dandy guide that cleared a lot of things up for me. Clip and save this for future reference.
Presidents can use Guard without a governor’s consent in cases of insurrection or if federal law enforcement is being obstructed. This requires applying the Insurrection Act Presidents can also use 10 U.S. Code § 12406. But that code says
… 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.
So the President can’t cut governors out of the loop with the 10 U.S Code thing. Governors can use Guard without being limited by Posse Comitatus, so if a governor is the one issuing the orders it’s kind of a work-around to Posse Comitatus under limited circumstances,
But it’s pretty clear that under current federal code, a President can’t just federalize Guard and send them anywhere to enforce laws or put down a domestic disturbance without the permissions of governors and/or applying the Insurrection Act. There’s no question Trump has not been following the law.
As I wrote yesterday, Trump was blocked by a federal judge from ordering Oregon Guard into Portland to put down imaginary riots. So yesterday Trump ordered California and Texas Guard to Portland to put down the imaginary riots. And the governors of Oregon and California were not consulted and do not approve. (I haven’t heard from Texas.) Last night the same judge blocked Trump from deploying anybody’s Guard in Oregon, period.
Steve Benen has a good run-down of the mess, here. Some of the California Guard are in Portland, and they’ve surely heard that a judge said they aren’t supposed to be there. Needless to say, this isn’t fair to the Guard, or to Portland. The Guard should just hang out in coffeeshops until they get a ride home.
The other issue is whether Trump really believes that Portland is under siege and burning down, or if he’s just claiming it is because he wants to start trouble. If it’s the former, it’s a serious sign of dementia. If it’s the latter, that’s not good either, of course.
In other news — the Supreme Court refused to pardon Ghislaine Maxwell. Now Trump will have to do it.
Update: Robert Reich, The Mad King’s Television
Agent Provacateurs are in Portland. We are not taking the bait.
I've been reading a lot of this guy: Effective Resistance to Authoritarianism.
Non-violence or the appearance of non-violence is the critical strategy. Deny the regime reasons to send in the military. This is easier to pull off in a smaller town like Portland, harder in a big city like Chicago. Easier in Portland because the situation is so much clearer, much more stable, and judges are ready to rule against the regime. Harder in Chicago because it's a big city and has garnered, over many years, deserved or not, a reputation for lawlessness. Governor Pritzker has quite the challenge.
Just what one would expect for October, horror shows 24-7. It is so third worldly.
Trump does not care if there is or is not violence in a city. Or crime. He cares if the city is 'for' or 'against' him. If Trump perceives that they are 'against' him, he wants to punish them, not persuade them or win them over with better policies.
Where Trump has acted with the military in TN, it's a ploy to try to build legal justification for the USSC to let Trump be as punitive with the military as he wants. That's where this is going eventually.
There's a scene from "Braveheart" where the villain British king doesn't want to waste arrows on the Scottish rebels so he orders them to send in the Irish (expendable) troops. The mutual charge ends with handshakes and embraces – the Irish don't fight – they switch sides. I'm not certain but I am hopeful that US nationalized troops will decide not to threaten and intimidate protesters but will refuse to engage against non-violent citizens. (It will help if citizens are open to winning over the troops who did not volunteer for the duty they have.)
Gretta Thunberg landed in Greece – I understand Israel still holds hundreds they abducted in international waters.
Regarding Maxwell: Democrats in Congress indicated they still want to talk to her now that she's exhausted all legal appeals. IMO, her lawyer(s) will use the threat of her testimony to blackmail Trump. If Trump pardons Maxwell, he's gonna generate a firestorm as hot as the center of the sun. So he will try to delay. Maxwell has every reason to doubt Trump will live for three more years. There's no guarantee he would keep a promise to pardon her on his last day in office if he lives that long. If Trump is found mentally incompetent and removed, Maxwell is SOL. So I think it will play out in the next few months. Maxwell wants out and she has the most leverage now. The only thing that would deter her is the fear of being murdered. And she could have that covered, possibly, with an account in the possession of her lawyer that would tell the names of the girls Trump sampled, when where and how.
I spent three months in federal prison (plus a month in a halfway house.) Pardon the vantity, but I think I'm tougher than average. Maxwell lived a life of privilege for many, many decades. Prison has to weigh on her much more heavily than it did me, and I didn't ever acclimate to it. She wants out – now – so she can disappear from public view to indulge herself how she wants. I'm not sure if there's anything Trump can offer Maxwell or threaten her with that will dissuade her.
Thanks for the update on Greta. She is a noble warrior of the highest class. All life on this planet owes her huge respect. For all we know for sure, that may be all the life in the Universe.
I think there is more than just the orange man's vanity in play here: he is directing a Tee Vee show and throwing out red meat to his fans. We now live in a world pf professional wrestling with kafabe, a heel and a golden boy. If you buy into the story line he is presenting you get entertainment value. Otherwise you are a heel.
Thanks for the update on Greta. She is a noble warrior of the highest class. All life on this planet owes her huge respect. For all we know for sure, that may be all the life in the Universe.
There is no set formula for "invocation of the Insurrection Act" that a president has to issue to use the authority of the act by sending in troops. He doesn't have to go before any court with any sort of evidence that insurrection is actually occurring. He doesn't have to issue some Executive Order citing 10 USC 252, or go through any other set procedure. By the wording of that statute, all he has to do is "consider" that insurrection is taking place.
It is true that he is required by 10 USC 254 to issue a public warning to those who are obstructing the enforcement of the law (which is how insurrection is defined by 10 USC 252) before he sends in the troops, but that is exactly what he and Miller have been doing for a few weeks now. They have, on numerous occasion, used the highly public forum of social media, and made public speeches, to exactly that effect, that a D/RINO/Deep State combination in blue states and cities is making our immigration law unenforceable by ordinary judicial processes. They claim that many judges, in fact, have joined this insurrectional combination.
The Insurrection Act, has already been as "invoked" as it ever needs to be.
U.S. District Judge Karin Immergut, a Trump appointee, banned the deployment of Oregon AND California AND any other troops to Portland for two weeks. In two weeks, there will be a hearing and she can extend the ban for two more weeks and/or make the ban permanent. In the preliminary hearing, she asked the administration to justify the need for troops, and the lawyer pointed at a 'tweet' from Trump as proof of the anarchy that Trump is responding to. Which didn't impress the judge.
Trump may cite the Insurrection Act to justify sending troops – the state may object and take it to court. The very name of the law suggests there shoud be an insurrection, which one guy in an inflatable frog suit is not. Which brings us to a legal question that the USSC will settle. Is Trump empowered to redefine a demonstration against Trump to be an insurrection against the nation?
We will have a national mass demonstration this month. (Please, show up locally) If one moron, or possibly a ratfu*king MAGA kook, throws a stone at a federal building, does that make every demonstration against Trump on Oct 18 (Got the date? It's a Saturday.) part of an illegal insurrection?
The inclination of the USSC to defer to Trump in most things comes slam against the First Amendment. This should be a bridge too far, even for this Supreme Court. IMO, Trump's lawyers are also concerned about whether or not the USSC will support Trump in stamping out opposition speech with the military by invoking the Insurrection Act, or they would not be merely threatening to invoke the Insurrection Act.
She actually sounds like a human being: Marjorie Taylor Greene open to healthcare deal with Democrats amid shutdown
Whatever else you might say about her, she's got courage. And a good instinct for survival.