HOUSTON – As tensions grow between demonstrators and the White House’s immigration policies, questions may arise over the president’s ability to deploy the National Guard.
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Who controls the National Guard?
The National Guard is a hybrid entity that serves both state and federal interests and often operates under state command and control, using state funding.
Sometimes, troops will be assigned by their state to serve federal missions, remaining under state command but using federal funding.
Generally, federal military forces are not allowed to carry out civilian law enforcement duties against U.S. citizens except in times of emergency.
When can the National Guard be deployed?
An 18th-century wartime law called the Insurrection Act is the main legal mechanism that a president can use to activate the military or National Guard during times of rebellion or unrest. But President Donald Trump didn’t invoke the Insurrection Act on Saturday when deploying the National Guard to Los Angeles.
The law cited by President Trump’s proclamation places National Guard troops under federal command. The law says that can be done under three circumstances: When the U.S. is invaded or in danger of invasion; when there is a rebellion or danger of rebellion against the authority of the U.S. government, or when the President is unable to “execute the laws of the United States,” with regular forces.
But the law also says that orders for those purposes “shall be issued through the governors of the States.” It’s not immediately clear if the president can activate National Guard troops without the order of that state’s governor.
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Trump initially said he was deploying 2,000 troops, but instead sent at least 300 California National Guard troops to Los Angeles to respond to immigration protests, despite objections from California Governor Gavin Newsom.
Previous history of National Guard being deployed
National Guard troops have been deployed for a variety of emergencies, including the COVID pandemic, hurricanes, and other natural disasters. But generally, those deployments are carried out with the agreement of the governors of the responding states.
The Insurrection Act and related laws were also previously used during the Civil Rights era to protect activists and students desegregating schools. President Dwight Eisenhower sent the 101st Airborne to Little Rock, Arkansas, to protect Black students integrating Central High School after that state’s governor activated the National Guard to keep the students out.
George H.W. Bush used the Insurrection Act to respond to riots in Los Angeles in 1992 after the acquittal of white police officers who were videotaped beating Black motorist Rodney King.
Last week’s deployment was also not the first time Trump activated the National Guard to quell protests. In 2020, he asked governors of several states to send troops to Washington, D.C., to respond to demonstrations that arose after George Floyd was killed by Minneapolis police officers. Many of them agreed, but the ones who refused the request were allowed to do so, keeping their troops on home soil.
At the time, Trump also threatened to invoke the Insurrection Act for protests following Floyd’s death in Minneapolis, but then-Defense Secretary Mark Esper pushed back, saying the law should be invoked “only in the most urgent and dire of situations.”
What about the National Guard in Texas?
Back in February, Gov. Greg Abbott gave Texas Guard members authority to arrest and detain people for entering the U.S. illegally from Mexico under an agreement with the Trump administration that expands the military’s role in immigration enforcement.
This was a broader shift from 2021, where members were given the power to arrest migrants on trespassing charges, but that order was limited to encounters on border landowners’ private property.
Since 2021, the Texas Guard has had a prominent role in Abbott’s Operation Lone Star that has included busing tens of thousands of migrants to Democratic-controlled cities and installing a barrier of giant buoys in the Rio Grande. Abbott was frequently at odds with the Biden administration over immigration enforcement, historically the federal government’s responsibility.
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Critics like democratic state Rep. Gene Wu back then said Texas’ agreement makes law enforcement’s job more difficult and dangerous and that Abbott “continues to generate more hate against an already terrified and vulnerable population.”
Abbott, meanwhile, has vehemently defended Texas’ border operations as a “stopgap” between enforcement during President Joe Biden’s administration.
Texas’ pact with U.S. Customs and Border Protection then gives the Guard full authority to investigate, arrest and detain migrants for purposes of deporting them. Guard members must work “only under the supervision of a CBP official” and must be able to speak with a CBP official “by cellular phone, radio, or other similar technology,” the agreement said.
The Associated Press contributed to this report.