Throughout its tenure, the Trump administration has been recognized for its ability to push the limits of executive authority, particularly with respect to the balance of state and national jurisdiction. While expanded federal power can lead to increased efficiency, in the case of his deployment of the National Guard to several U.S. urban areas to “rebuild our cities,” it can be argued that checks and balances on executive authority are necessary in this case to preserve the delicate balance of federalism.
While it may be true that crime rates in cities such as D.C. have dropped because of the National Guard presence, due to the misinterpreted legal framework under which many divisions of the National Guard have been federalized, it is more important for the Trump administration to set the precedent of respecting the rule of law as it was intended to be interpreted rather than broadly interpret Title 10 for its own benefit. Indeed, the National Guard can only be federalized under Title 10 of the US Code in certain circumstances of invasion, rebellion, or inability with normal forces to execute the law, the latter of which the Trump administration is legally justifying their operations with. Despite calling in the National Guard to counter the “violent gangs and bloodthirsty criminals” of D.C., crime rates across the nation have already been on the decline, and of the 10 biggest cities with the highest crime rates, Trump has only sent the National Guard to one—Memphis, Tennessee—according to Stateline. Therefore, many have been skeptical of the legality of using Title 10 to justify the deployment of the National Guard, given that no abnormal public unrest is noticeable nationwide to fall under its ‘inability to execute the law’ requirement.
It is important to note that this action is unprecedented; the last time the National Guard had been deployed domestically for civil unrest by any administration other than Trump’s was in 2015 during the chaotic aftermath of the death of Freddie Gray while in police custody, in which there was significant property damage and risk of escalation. In comparison, Trump is deploying the National Guard in the same way, not for one particularly dangerous event, but to combat everyday crime throughout the nation. The National Guard itself is controlled by individual states and typically involved in active-duty disaster relief or peacekeeping operations with “little experience or training in responding to civil unrest” compared to local police forces, according to the Brennan Center for Justice. Therefore, the administration’s decision to combat everyday crime with military rather than civilian law enforcement has had mixed reactions.
For the governors of Oregon and California, Trump’s attempt to send in California’s National Guard across state lines to Portland was seen as a violation of state sovereignty. Having been denied access to the Oregon National Guard by its governor, Tina Kotek, Trump attempted but was blocked by the courts from sending in the California National Guard instead. Judge Immergut, a Trump appointee, commented on her decision arguing that protests in Portland were in no way significant enough to warrant legally federalizing the National Guard and that doing so would risk “the sovereignty of that state and others,” according to the BBC. The issue at stake, therefore, is not merely how best to combat crime, but whether it is appropriate for the executive branch to override the balance of federalism in doing so, setting a dangerous precedent for future administrations that could permanently erode the separation of powers.
