In 1807, congress passed United States Federal Law (10 U.S.C. §§ 251–255) governing the ability of the President of the United States to deploy military troops within the United States. The Posse Comitatus Act amended in 1956 reads as follows:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both“.
These provisions were the reason George W. Bush hesitated to send in the National Guard after Hurricane Katrina. He waited for approval from Louisiana Governor Kathleen Blanco. She insisted that the National Guard report to her and that the guard not assist in law enforcement. She waited until a week after the storm, when Mayor Ray Nagin was begging for help, before she changed her mind.
As a result of this situation, on September 30, 2006, congress modified Sec 333 of the “Insurrection Act” and widened the president’s ability to deploy troops within the United States. Among other things this gave the President authority to order the dispersal of either insurgents or “those obstructing the enforcement of the laws.” The name of the chapter was changed from “Insurrection” to “Enforcement of the Laws to Restore Public Order.”
It is clear that this act was designed to give the President more power to respond in the event of a natural disaster. However, it does more than that. One could argue that it gives President Trump the authority to send in troops to enforce the law in the event of anyone “obstructing the enforcement of the laws.” How else, exactly, would one describe the actions taken by California?
Trump has ordered the National Guard to assist with border security. Since both Obama and Bush did the same thing, it is impossible to argue he lacks the authority to do that. However, under normal circumstances the President cannot deploy the National Guard without the approval of the Governor.
If Trump deploys National Guard troops everywhere but California, the results are predictable and disastrous. Those people seeking to enter the United States will all swerve toward the California border. That is particularly true if they believe California is a sanctuary state and they can come here without risk of getting deported.
Trump knows this, which is why he wrote the following in February:
“Frankly, it’s a disgrace, the sanctuary city situation,” Trump said at the White House. If the administration were to remove Immigration and Customs Enforcement officials from California, the state would be “begging” for them to come back, he said. “I’m thinking about doing it.”
If Trump even hints at reducing Immigration and Customs Enforcement in California the results could well be an unprecedented fiasco where thousands of illegal immigrants literally rush the California border. Yet if Brown authorizes the National Guard to help patrol the border, his sanctuary state policy is exposed as a total fraud. Trump has called Governor Brown’s bluff. My prediction is that Brown will defer the decision to MG Lawrence A. Haskins, the commander of the California National Guard which is unlikely to fool anyone.