Trump Might Get to Send the National Guard Anywhere He Wants

"The law Trump has cited to activate National Guard troops is not the Insurrection Act - though he has openly contemplated it - but rather an emergency statute titled Section 12406. (Not every statute gets a memorably ominous moniker.) That law permits the president to deploy the Guard, even over the objection of a state governor, in cases of rebellion or foreign invasion, or when "the President is unable with the regular forces to execute the laws of the United States.""

"If you're wondering what exactly that third, catch-all category actually means, then you've already spotted the key issue. Can the president send in the troops if, for example, the feds could use a few more people to help make drug arrests - which would essentially always be the case? Or would the law require a cataclysmic emergency like a natural disaster or a city-consuming riot? The line probably falls somewhere between those two extremes - but where?"

"Trump's lawyers have identified this ambiguity and exploited it, to mixed success thus far in the courts. When the President deployed the National Guard in California during anti-ICE protests in June, he lost the first round when a federal district court decided Trump was simply wrong, and no such emergency conditions existed. But the (decidedly liberal) Ninth Circuit Court of Appeals reversed that ruling - not so much because Trump was right, but rather because, as president, his determination about the necessity of activating"

Section 12406 allows the president to deploy the National Guard over a governor's objection in cases of rebellion, foreign invasion, or when the president "is unable with the regular forces to execute the laws of the United States." The phrase "unable with the regular forces" is ambiguous and could cover anything from routine law-enforcement shortfalls to catastrophic emergencies. Legal challenges have already tested that ambiguity after deployments during protests. A federal district court found no emergency in one instance, while the Ninth Circuit deferred to the president's judgment. The core issue is whether courts can second-guess presidential factual determinations and thereby limit federal deployments.

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