Federal Troops In Response to California Protests: A Double Threat to the Constitution
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What’s Happening in California
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As people gather and demonstrate against ICE raids and questionable deportation tactics taking place in California and other locations across the country, the administration has responded by federalizing the National Guard, mobilizing U.S. Marines, and authorizing Guard deployments across the country, including to states that explicitly object. This move isn’t just alarming. It may be unconstitutional on two fronts:
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The Administration is also considering invoking the Insurrection Act, which authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence and has not been invoked by any President since 1992.
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A closer look at this week’s memos and motions
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Axios story about Judge Bryer’s Response to Governor Newsom’s Emergency Motion, June 10
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First Amendment: Right to Assemble
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The First Amendment guarantees the right to peaceful assembly and protest. Deploying federal troops in anticipation of a protest, rather than in response to an actual rebellion, could violate the First Amendment by deterring constitutionally protected speech and assembly.
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Tenth Amendment: State Sovereignty
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Under the Tenth Amendment, powers not delegated to the federal government are reserved to the states. In this case, California Governor Gavin Newsom has rejected the deployment; yet, the federal government has sidestepped state authority without citing the Insurrection Act. The memo uses 10 U.S.C. § 12406, which requires rebellion or law enforcement collapse, neither of which is present.
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By overriding state refusal and deploying troops anyway, this action may violate the constitutional balance of power between the federal government and the states.
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This is a moment that demands clarity and constitutional vigilance.
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We’re calling on legal professionals to:
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Educate: Offer yourself as an expert to local media outlets. Help the public and press distinguish lawful protest from actual rebellion.
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Recruit: Find like-minded lawyers in your network willing to provide pro bono support to local organizations representing detained protesters, volunteer their time to educate others, serve as experts to the local media, and use their concern about this moment to build a local rule of law committee.
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Share: Disseminate fact-based, easy-to-understand content to your online network. Help friends who are not lawyers understand what you understand. Remind friends to read and check primary sources for facts.
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Write an op-ed or Letter to the Editor of your local newspaper or digital news outlet.
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Find the way that works best for you to speak up and speak out.
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The Impact of Our Work and A Big Win For Election Protection in Georgia
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Earlier this year, our team in Georgia filed an amicus brief arguing that certain changes made to election rules by the State Election Board were invalid. To the benefit of Georgia voters, the Georgia Supreme Court upheld parts of the lower court’s decision earlier this week. Read more here.
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On Wednesday, June 25, we will launch a new webinar series titled “What Lawyers Can Do to Defend the Rule of Law.” Legal experts will highlight actionable strategies and concrete opportunities for lawyers to take action, whether through litigation support, pro bono representation, collective action, amicus briefs, public comments, or other means.
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Webinar panelists will share examples of successful lawyer-led initiatives that are making a meaningful impact today and discuss how to get involved. More information coming later this week!
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Thank you for your continued dedication to the rule of law and the Constitution. If you have any questions or comments, please email us at info@democracy-taskforce.org.
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