As a follow-up to one of my previous posts on “Domestic Constitutional Violence: Los Angeles” (see here), I want to mention that a federal appellate court in California recently affirmed President Trump’s decision to deploy the California National Guard, ostensibly to restore law and order in downtown Los Angeles. (The case is Newsom v. Trump, and for reference, here is a PDF of the court’s opinion.)

In summary, when President Trump ordered this initial military deployment in downtown L.A. (see map below), he invoked a federal law, codified at 10 U.S. Code §12406 (see here), that authorizes the president to comandeer local national guard units in one of the three following situations (emphasis added):

1. the United States … 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 open legal question, however, is this: Who decides? Who gets the final say as to when any of these three preconditions are met? The president? The courts? Or the Congress? In reaching its decision, the federal appellate court in Newsom v. Trump concluded that “the text of the statute does not make the President the sole judge of whether one or more of [these] statutory preconditions exist.” (See page 18 of the court’s decision, available here.) But the court’s conclusion is flat-out wrong. In Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), a case involving a predecessor statute to 10 U.S.C. §12406, the Supreme Court of the United States — in an opinion authored by the legendary Joseph Story — held that “the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

My colleague and friend Ilya Somin (George Mason University) tries to distinguish Martin v. Mott in this otherwise erudite blog post. Alas, whether one agrees with Trump’s draconian and mean-spirited ICE-enforcement actions in Los Angeles, Justice Story’s reading is the only one that makes any logical or practical sense. Why? Simply put, because the courts lack the power to enforce their own interpretations of §12406, since (as Alexander Hamilton taught us long ago) they lack both the power of the sword and the power of the purse.

Postscript/historical note: The law codified at 10 U.S.C. §12406 was enacted as part of the Militia Act of 1903 (see here), and that law, in turn, repealed and replaced the George Washington-era Militia Acts of 1792 and 1795. I wrote about the history of these original Militia Acts in my 2019 paper “Domestic Constitutional Violence“, which is available here.