If the feds can characterize an unarmed assemblage of protesters as an invasion, Andrew P. Napolitano asks whose freedoms are safe.
President Donald Trump at a mixed martial arts championship in Newark, N.J., last week. (White House/Daniel Torok)
The deployment of California National Guard troops and active-duty U.S. Marines onto the streets of Los Angeles is an assault on federalism, violates federal law and manifests a dangerous pattern of governmental behavior in defiance of constitutional principles and the rule of law.
None of this was the case until President Donald Trump, against the express wishes of California Gov. Gavin Newsom, federalized the California National Guard, became their commander in chief and ordered them to thwart both lawful and unlawful demonstrators in Los Angeles.
There, agents of the U.S. Border Patrol and Immigration and Customs Enforcement (ICE) were attempting to make warrantless arrests of persons whom they and their colleagues believed were unlawfully present in the United States. Demonstrators soon arrived, some of whom peaceably assembled and vociferously objected to the arrests, and some of whom attempted to interfere with them violently.
Clearly, acts of physical interference with even unlawful arrests are themselves unlawful, but condemning government behavior, waving Mexican flags, cheering on those who have been arrested, even standing in the way of federal agents until ordered to move are all protected acts of expression and historically recognized acts of civil disobedience.
The conflicts between some — not all — demonstrators and federal agents at times grew violent, and local and state authorities ordered police to protect the federal agents and keep the demonstrators at bay — but not silence them — while the feds carried out their tasks.
Then the president ordered in the federalized National Guard and — almost unimaginably — he ordered in active-duty Marines. The sight of active-duty armed troops confronting unarmed persons exercising their constitutionally protected freedom of expression, and the declaration of no free speech zones, was and is gut wrenching, un-American and without lawful precedent in modern times.
California National Guard in front of protesters in Los Angeles on Monday. (U.S. Northern Command/Wikimedia Commons/Public Domain)
Here is the backstory.
The Constitution makes the president the commander-in-chief of U.S. troops and of state National Guard units when the latter are called into federal service by Congress or by the president. In numerous statutes, Congress has defined when and under what circumstances the president may command state military personnel.
The latter are familiar to most Americans. They are part-time civilian/soldiers, our neighbors, none of whom are on active duty but for a few administrators, and they are typically deployed unarmed to assist local law enforcement when asked by a state governor. We have all seen them selflessly helping rescue folks and delivering aid after natural disasters.
U.S. soldiers with the Texas Army National Guard rescue Houston residents as floodwaters from Hurricane Harvey continued to rise on Aug. 28, 2017. (U.S. Army/Zachary West/Public Domain)
Can National Guard troops be used for law enforcement? That depends on who summons them.
Congress addressed this in numerous federal statutes, enacted in 1792, 1794, 1795 and again in 1807. The essence of these laws permits the president to declare himself the commander-in-chief of the National Guard for law enforcement purposes only when asked by a state governor. Short of the gubernatorial request, the Guard may not be summoned by the president for law enforcement purposes, except in the cases of invasion or rebellion.
Who is in charge of law enforcement?
The Constitution retains the police power in the states. The Supreme Court has ruled that regulations and enforcement of them for health, safety, welfare and morality are presumptively state functions that were not delegated to the feds when the 13 states formed, and later when the 37 states joined, the Union. This is the principle of state sovereignty, otherwise known as federalism.
Federalism was reinforced dramatically as recently as 1997 in a case called Printz v. U.S. There, Congress enacted gun regulations and ordered the states to enforce them. In an opinion by the late Justice Antonin Scalia, which invalidated the statute, the court reinforced federalism — the primacy of the states in matters of safety and the immunity the states enjoy from federal takeovers.
Posse Comitatus Act
Congress itself has also spoken to this, though not in the modern era. The Posse Comitatus Act of 1878 — part of the compromise that ended so-called Reconstruction in the Southern states — absolutely prohibits the use of federal troops for law enforcement purposes unless the governor has requested them, or unless in the case of invasion or rebellion. The modern Congress has defined “rebellion” as collective acts of violence intending to overthrow or substantially destabilize the government.
Donald Trump, without consulting with California’s law enforcement leaders, commandeered 2,000 of our state’s National Guard members to deploy on our streets.
Illegally, and for no reason.
This brazen abuse of power by a sitting President inflamed a combustible situation… pic.twitter.com/Xy8JHMq3cV
— Gavin Newsom (@GavinNewsom) June 11, 2025
Thus, we can see that federalizing of the National Guard — which transforms them into federal troops — actually disables them from performing law enforcement duties which they could lawfully have performed when under Gov. Newsom’s command. Moreover, since there is no invasion or rebellion as the laws define them, there is no lawful basis for all these troops on the streets.
This is not constitutional hairsplitting. This is very serious business. If the feds can characterize an unarmed assemblage of protesters as an invasion merely because they are angry, carry a foreign flag and prefer a foreign language — all protected speech — and engage in civil disobedience, and thus justify the use of military force against them, whose freedoms are safe?
The government argues that the current state of affairs in Los Angeles constitutes an emergency and thus it has broad powers to address it. That is constitutional hogwash.
The Supreme Court has consistently ruled that there is no emergency exception in the Constitution unleashing the government. Even during the War Between the States — though ruling afterward — the court found that the government retains the obligation to abide and recognize all liberties protected by the Bill of Rights. The emergency argument is not only unconstitutional but extra-constitutional. It was crafted by those who reject their oaths to preserve, protect and defend the supreme law of the land.
Thomas Jefferson wrote that the purpose of government is to secure our liberties, not to look for ways to assault them. Are we slouching toward authoritarianism? NO. The events in Los Angeles are one giant leap in that lamentable irreversible direction.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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After what Israel has done in the name of their own survival is anyone really safe?
“Power corrupts” because most assert their interests, beliefs, and tribal doctrines as superior to any pledge of values.
But the tyrant further pushes the bounds, defies regulation, attacks opponents, and abuses office for personal gain.
He always declares enemies beyond the tribe, and domestic military emergencies that require him to defend the tribe.
The Founders were well aware of that, but took no precautions against the corruption of democracy by money power.
They saw the need for checks and balances, but their guess that federal branches could balance each other was wrong.
That is like an aircraft designer saying that the wings may fall off, because we can always rely upon the landing gear.
1. Now all branches of federal government are run by partisan gangs, disregarding their mandates and all restraint;
2. The judiciary never checks executive agencies, which never check the judiciary; the legislature rarely checks either.
3. The Constitution and principles of democracy are invoked only to conceal the corruption of the US government.
4. The only new corruption is the explicit declaration of unconstitutional powers by the tyrannical executive branch.
We must not be so loyal to the old Chevy that we refuse to allow repairs. To make the system work, I suggest reforms:
1. Constitutional amendments prohibiting election or media funding beyond limited registered Individual donations;
2. Checks and Balances Within each functional branch, because they do not have powers to balance each other;
a. Monitor all persons involved with investigations and these decision processes for their political viewpoints;
b. Combine staff into committees with balanced viewpoints and rotating anonymous members;
c. Have two or three such committees vote on decisions and refer disputes to a higher such group.
3. Public and mass media education to identify and avoid social dependency upon tribal groups and their tyrants.
The problem in passing such reforms is convincing politicians that they can still be re-elected by those means.
I agree with Robert Stewart. If your police department says it’s “overwhelmed” and cars are on fire, property being destroyed and police assaulted, doesn’t it seem probable that Federal buddings were at risk and greater harm to police and agents was imminent? It is Newsom’s failure to ‘preserve and protect’ that gave Trump no choice but to intervene. although I’m sure with no remorse. The good news is that national guard and marines served solely to preserve and protect, and, to my knowledge, these forces didn’t initiate confrontations. Also, interesting facet by Stwart that many rioters were probably not US citizens, so is that an invasion? After all they did raise foreign flags. Ironically, we may learn that many of the actual rioters were US citizens, paid to assault.
Well said, Judge. Thank you for spelling out the law and standing up for the Constitution. Not many seem to be doing that anymore. Trump took an oath to uphold the Constitution, but he obviously doesn’t respect it or understand it.
I worked in Los Angles for more than forty years. I know the area where protests/riots are taking place. I also know destruction and looting of business is not protesting, and THAT is why force must be used to stop such violence.
Questions: Are Foreign Nationals involved with rioting in America, as it appears? If so, does that involvement not constitute an act of war? Just asking.
The problem with Judge Nap’s analysis is that while many of the protesters were peacefully exercising their right to engage in civil disopedience, many were clearly bent on mayhem–hurling rocks, dropping concrete blocks on cars, hurling Molotov cocktails and frozen water bottles at federal agents. That is not protected speech. The LAPD, according to the chief of police was “overwhelmed” as the situation was spinning out of control, since Mayor Bass apparently waited two hours before even calling in the LAPD. There was every rationale for the governor to call out the guard at that point, yet he refused to do so, in keeping with California’ status as a “sanctuary state,” so it fell upon the president to do so in order to protect federal agents.
From all reports, the guard was not involved in arresting protesters but performing the role of protecting federal government property, thus freeing up an undermanned, defunded police department to deal directly with the violent protesters. The most egregious falsehood he reiterates is the myth that ICE agents were arresting innocent people willy nilly, when in fact they were serving arrest warrants to known criminals.
A number of prior presidents have federalized the national guard in similar circumstances, including:
President Lyndon B. Johnson, who in 1965, when he deployed the National Guard to Alabama to protect Civil Rights protestors during the Selma-to-Montgomery marches, bypassing the state’s governor.
President Dwight D. Eisenhower, when he federalized the Arkansas National Guard to enforce desegregation of schools after the governor defied a court order.
President John F. Kennedy, when he used this authority to enforce desegregation in Alabama and Mississippi.
President Bush in 1992, when he called out the guard during the Rodney King riots in LA.
If the Mayor and Governor decided not to call in the Guard, why did federal agents not let the state handle it?
If they had only state warrants, why did they not leave that to the state?
If they had federal warrants, why seek arrests for federal offenses during a demonstration?
If they had not intervened, would there have been any federal property to protect?
They HAD federal warrants. The demonstration didn’t start until after the arrests began.