It's California Versus Donald Trump in the Streets, and in Court

Yesterday, Sen. Chris Murphy (D-CT), who thinks of himself as a 2028 presidential candidate, was on MSNBC's Morning Joe. And he shared his views on the two headline-grabbingest events of the past week:

It can also be true that everything that's happened in the last seven days between the fight with Elon Musk and now the deployment of the National Guard is probably also a distraction from the main story, which is that right now, Donald Trump is trying to pass probably the most unpopular piece of legislation that he will attempt to move through Congress in his first term.

The Senator said it was imperative for Democrats to "keep [their] eye on the ball," with "the ball" being the big, beautiful budget bill.

Perhaps it is a little easier to keep your eye on the ball when you live in a state that is 2,500 miles from the one being invaded by the Trump administration—we don't know. What we do know is that, at least from where we sit, this is some of the most tone-deaf, wrongheaded political "analysis" we've ever heard, from either a pundit or a politician, for at least four reasons:

1. There have been budget bills in the past that one party or the other really hated. There will be budget bills in the future that one party or the other will really hate. On the other hand, what the Trump administration is doing in California is somewhere between "extremely unusual" and "completely unprecedented."
   
   
2. A budget bill, no matter how problematic it might be, is not going to destroy the foundations of democratic government as we know it (Section 70302 notwithstanding). What the Trump administration is doing right now in California, however, has the potential to be the beginnings of the end.
   
   
3. A budget bill can be reversed, once power changes hands. The damage that the Trump administration is doing right now could be irreversible.
   
   
4. The budget bill has not passed, and is not close to passing. It is entirely possible to focus on what's happening in California right now and THEN to worry about the budget bill at a later date.

It seems to us that Murphy is a little too concerned about positioning himself for a presidential run, and not concerned enough about such niceties as, you know, the Constitution. Perhaps someone should present it to him in very simple terms: "The President of the United States has mobilized an armed force, with which he is invading an American state and an American city that he regards as the enemy." This is not normal. This is, in fact, about as far from normal as it gets.

In any event, we are not prone to declaring that the sky is falling at the first signs of trouble. And with the various expressions of Trumpism, you never know what will happen, long-term. Still, what's going on right now is very bad, and it could lead to a place that is much, much, much worse. Consequently, while we wrote yesterday about the mess in Los Angeles, we're going to give over nearly all of today's posting to a more in-depth treatment. Because NOW is the time to push back on this extralegal abuse of power, not "well, maybe after the budget bill."

Historical Background

We're going to start with a little bit of a history/civics lesson, since we have yet another circumstance where Donald Trump is exploiting gray areas that have existed, and that have been carefully observed by presidents, for hundreds of years.

Recall that when the Constitution was written in the 1780s, the United States had a couple of challenges when it came to military force. The first, and better known, was that the King of England had abused HIS military power, such that the Founders were wary of standing armies. The second, which any reader could infer if they thought about it for a moment, was that travel times were long. The Americans wanted to be able to defend themselves against hostile foreign powers, and also against Native Americans. If there was an attack on Americans in, say, Charleston, SC, and the nearest U.S. military force was in Richmond, VA, it might take 3-4 days for a detachment to cover that distance (and that's after it taking a day or two for news to reach Richmond). Needless to say, that's going to be "too late," in most cases.

And so, the early defense of the United States relied almost entirely on state and local militias, comprised of volunteer citizen-soldiers, who served only in times of need. This solved both problems, as it meant the U.S. government needed only to maintain a fairly small standing army (less than 10,000 soldiers; not enough to oppress the entire population). It also meant that a state or a municipality could summon a defensive force fairly quickly, should the need arise, as opposed to having to wait several days (or more) for assistance to arrive. Just a few years after the Constitution was adopted, Congress added the Insurrection Act of 1792 to the mix, which allows the government to deploy the U.S. armed forces domestically to "suppress rebellion" when it is "impracticable" to do so through normal order.

This arrangement worked... OK for about, well, fourscore and seven years. However, the advent of modern warfare in the 1860s, with vastly larger armies, much more rapid mobilization, a need for much better training and discipline, etc., made clear that the U.S. was going to have to bite the bullet and commit to a sizable professional military establishment. The next half-century, roughly speaking, saw the passage of a series of laws meant to define both the militia system and the professional army, their functions, and their relationship to each other. Here is a quick rundown of the most important of those laws:

• The Posse Comitatus Act of 1878 prohibits federal troops from enforcing domestic policies within the United States. State militias (now known as the National Guard) are allowed to do so, within their own state, and with consent of the governor. They can also take action in other states, again with the consent of the governors of those states. Meanwhile, the Posse Comitatus Act includes an exception for the circumstances described in the Insurrection Act of 1792, such that federal troops ARE allowed to help put down insurrections when no other option is practicable.
  
  
• The Dick Act of 1903 and the National Defense Act of 1916 formally bestowed the name "National Guard" (which was already in use in some states) and established that soldiers of the National Guard had to meet the same standards as those of the federal military. Though they remained primarily answerable to state governors, the president was also given authority to federalize national guard troops for a wider variety of circumstances. Previously they had been limited to service within their own state, but after 1916, they could be deployed abroad, or in other states, on the president's orders.
  
  
• Title 10 and Title 32 of the U.S. Code were both adopted, in their current form, in 1956. The former gives the president even more latitude to federalize the National Guard. However, when acting under Title 10 authority, the federalized troops can only act in a supporting capacity, and cannot enforce the laws themselves. The latter lays out a broader variety of roles that the National Guard can serve; those roles are performed under the command fo the state governor, but with approval from the federal government.

We tried to keep that as clear and concise as is possible, but it may be easier to just explain lay out the real world implications of these laws:

• Normal service for National Guard troops, which can be done exclusively on the authority of their state's governor, includes things like helping combat and recover from disasters, whether natural (e.g., hurricanes, wildfires) or man-made (e.g., mass shootings, bombings).
  
  
• Title 32 service, under which the governor is still in charge but the president has to grant approval, includes things like border security and maintaining civil order after massive disasters (e.g., Hurricane Katrina).
  
  
• Title 10 service, under which the president assumes command, includes foreign deployments (National Guard troops were used in Iraq, Afghanistan, etc.), supporting law enforcement, and quelling riots.

At the start of the Civil War, Abraham Lincoln nationalized the various state militias, and it was generally disastrous, which is what propelled the creation of a proper, professionalized military establishment. Thereafter, no president tried to nationalize militia/National Guard units for close to a century. During the civil rights era, the National Guard was occasionally nationalized, without the consent of the governors, to make sure that the laws were observed and that Black Southerners were protected. Thereafter, the National Guard has occasionally been nationalized to deal with other crises (like the L.A. Riots of 1992), but WITH the consent of the governors.

This, in short, is how the system evolved. Generations of political leaders have tried to balance flexibility and security, on one hand, and the liberties of the citizenry on the other. We'll get back to this later in this item.

The Build-Up

What happened in California over the weekend did not come out of nowhere. Conservatives have hated the Golden State, and held it out as a case study in everything that's wrong with liberalism/the Democrats, for generations. The state is also on the way to being majority-Latino, and the city of Los Angeles already is. Meanwhile, Trump has the New-Yorkers-who-disdain-California thing going on, and did battle with the state during his first term (e.g., refusing to render aid after the 2018 wildfires).

And then there is The Center for Renewing America (TCRA), which was founded by Trump's fanatical underling Russ Vought. Several folks at TCRA were contributors to Project 2025. The organization also posted this plan to its site a little over a year ago. It proposes that, by declaring undocumented immigration to be an "invasion," the government has the ability, under the Insurrection Act, to use the U.S. military to impose its will. We doubt that Trump has read the plan, but we have no doubt that Stephen Miller is intimately familiar with it.

Late last week, there was some scuffling between Donald Trump and Gov. Gavin Newsom (D-CA) that has gotten a bit lost due to, you know, the troops invading Los Angeles. In short, Trump threatened to cut hundreds of billions in federal funding to California, and Newsom threatened to withhold $80 billion in tax payments to the federal government. We cannot find a clear explanation of how that would work, since most income tax payments are made directly to the IRS. However, we assume it refers to the withholding that the state does from the paychecks of state employees.

In the piece yesterday, we wrote about how everything was clearly set up to produce this result, namely dramatic scenes of "violence" on the streets of Los Angeles. ICE, as is its habit these days, did the whole masks-and-riot-gear bit, while also targeting people who are trying to follow the rules. When this triggered a response (either entirely peaceful, or nearly so), the tear gas and rubber bullets quickly made an appearance. Then, Trump quickly federalized the National Guard, not even bothering to check with Newsom.

It could not be more obvious that this is carefully staged political theater, for the benefit of the base. Just in case there was any doubt, however, White House staffers gushed yesterday about how happy they are to be having this fight. And for a little icing on the political-theater cake, it was reported yesterday that Dr. Phil was once again on the scene (as he was with the Chicago raids), for some camera time.

The upshot is that nothing here was accidental or spontaneous; this sequence of events was all-but-inevitable, because the Trump administration made it that way.

Why Now?

What is a little less clear is why the Trump administration moved forward right now, as opposed to last week or next week, last month or next month. There are no clear answers to that right now. All we can do is offer some theories:

• Distraction: It has not been a great couple of weeks for Trump and Trumpism. The tariffs/trade war is not going well, he keeps losing in court (particularly in his war against universities), he's in a catfight with Elon Musk, the budget bill is gasping for air, etc. Maybe it was time to change the narrative.
  
  
• Kilmar Abrego Garcia: The administration took a loss when it was compelled to bring Kilmar Abrego Garcia back to the United States. And since then, most of the coverage has been about how weak its case is. So, the White House may have wanted some new evidence that it's "strong" on border policy.
  
  
• Anger: Trump is always angry about something. But he's extra angry right now, because of the squabble with Elon Musk. It could be that he gave the "go" order as a means of venting his frustration. We would tend to guess that, for him, footage of police beating up Mexicans is chicken soup for the soul. Or maybe the spot where the soul is supposed to be.
  
  
• The New Jersey Election: It would be rather unusual to move forward with this plan JUST to influence a Republican gubernatorial primary in a blue state. However, if they were going to do it sometime soon anyhow, maybe doing it before and during the primary adds some "bonus" value in terms of maybe helping Trump endorsee Jack Ciattarelli.
  
  
• Clock Ticking: We are now in the part of the calendar that is both hurricane season AND tornado season. It would be a little tacky to engage in these kinds of activities while, say, Galveston, TX, is underwater. So maybe the White House wanted to make a move before a natural disaster strikes somewhere. Since they fired pretty much all the forecasters who warn when tornadoes/hurricanes are coming, they can't really know how much time they have to work with.

These are just guesses. But given that this was clearly part of a broader plan, we think we're on fairly solid ground in presuming that there is a connection between the current events in California and other aspects of the current administration.

In the Streets...

Trump actually seems to be a little confused about what is going on, as if he's not even the one calling the shots. After attending a UFC event in New Jersey, he posted this at 2:41 a.m. ET on Sunday:

Great job by the National Guard in Los Angeles after two days of violence, clashes and unrest. We have an incompetent Governor (Newscum) and Mayor (Bass) who were, as usual (just look at how they handled the fires, and now their VERY SLOW PERMITTING disaster. Federal permitting is complete!), unable to handle the task. These Radical Left protests, by instigators and often paid troublemakers, will NOT BE TOLERATED. Also, from now on, MASKS WILL NOT BE ALLOWED to be worn at protests. What do these people have to hide, and why??? Again, thank you to the National Guard for a job well done!

The National Guard had not yet arrived in L.A. when he sent that. And while there were some dust-ups, the streets of L.A. were quiet by the time the National Guard troops were on the scene.

Despite the fact that the first detachment of National Guard troops was not needed, and was an overreaction, that did not stop Trump (or whoever is making the decisions) from deploying another 2,000 National Guard troops on Monday, or from deploying 700 Marines shortly after that.

Again, to the extent there was unrest, it's almost entirely subsided by now. Oh, and whoever commands the Marines that are about to begin arriving in, and patrolling, the streets of Los Angeles has not bothered to communicate or coordinate with the LAPD. It's just a great situation when the people armed with lethal force are in the dark as to what one another are doing. It's almost like the White House really wants MORE tension, and more acts of resistance, and more footage of armed people beating up brown protesters.

...And in Court

Once a president has federalized the National Guard, there is no provision for a governor to de-federalize it. So, all Gavin Newsom can do right now is except encourage Californians not to take the bait, and not to play the administration's game. However, he has also directed state AG Rob Bonta to file a lawsuit asking for an emergency injunction ordering the White House to stand down.

This is where things get a little weedy. Trump (or whoever is making the decisions here) ordered the deployment of the National Guard in a memo entitled "Department of Defense Security for the Protection of Department of Homeland Security Functions." In it, Trump DOES NOT invoke the Insurrection Act, which would require him to assert that: (1) the protesters were in a state of rebellion against the United States, and (2) there was no other option for suppressing the rebellion. Neither of those is likely to stand up in court. Although the memo actually does suggest the protesters are in a state of rebellion, the White House is clearly not ready to try to sell that to a judge.

Instead, Trump is acting under Title 10 authority (see above). Specifically, he invoked Second 12406 of Title 10, which addresses the use of National Guard troops to "prevent rebellion" and to "execute the laws of the United States." It's a little easier to argue that there MIGHT be a rebellion, than that there actually IS a rebellion. It is even easier to argue that "the laws of the United States" need to be enforced. This is not to say that the White House has an easy argument to make, merely that the administration knows it's on shaky ground, and so clearly tried to lower the bar it has to clear. The lawsuit filed by Bonta argues that the government is grossly misapplying the statute, and that it also erred in completely surpassing Newsom.

How this will turn out is anyone's guess, because there is literally no jurisprudence that is directly relevant. The only time a president has specifically used Second 12406 was in 1970, when Richard Nixon used the National Guard to deliver mail during a postal strike. That's not especially similar to the current situation, and besides, the Nixon invocation never ended up in court. The White House certainly appears to have a weak case, but if they get in front of the right judge(s), you never know.

Fascism 101

And now, let us talk a little bit more about our assertion that this is an abuse of power. Specifically, we want to run down some of the things that have happened that tend to be characteristic of a fascist regime:

• Arresting Innocents: It is a smart bet that people who have committed no crimes are going to be arrested and incarcerated. Maybe even sent to some foreign hellhole prison. It will be a few days before the picture becomes clearer, but there's at least one high-profile person who's been arrested and incarcerated (though later released). It is David Huerta, president of SEIU California, who was serving as a community observer during one of the ICE raids in Los Angeles.
  
  
• Arresting Opponents: It hasn't actually happened yet, but Trump has threatened multiple times to arrest Newsom. What is the Governor's alleged crime? According to the President, "his primary crime is running for governor because he's done such a bad job." Trump might want to be careful about criminalizing running for office and doing a bad job. Newsom has been goading Trump into doing it, knowing full well that it would make him (Newsom) into a martyr (and help his 2028 presidential bid).
  
  
• Intimidating the Press: Many readers will have seen this already, as it was all over the place yesterday, but an Australian reporter was covering the story, and an LAPD officer very deliberately took aim and fired a rubber bullet at her.
  
  
• Demonizing the Enemy: DHS Secretary Kristi Noem, who is one of Trump's most obedient lapdogs, has been all over the place for the last couple of days, happy to tell anyone and everyone how awful California is. Perhaps the most over-the-top remark, among many over-the-top remarks, was her assertion that Los Angeles is a "city of criminals." Both (Z) and (L) live in Los Angeles; all of you should really be ashamed for reading the words of criminals.
  
  
• Gaslighting: There has been some particularly remarkable bending of reality from Trump and his allies in the past few days. Trump, who lacks imagination, has been peddling the tired old right-wing chestnut that the people protesting the ICE raids are, in fact, paid crisis actors. We assume that either "the globalists" or "George Soros" will make an appearance in the next "Truth."
  
  To give another example, Speaker Mike Johnson (R-LA) managed to keep a straight face while decreeing that critics of the ICE raiders are hypocrites, because they liked masking during the pandemic, but now they dislike masking when arresting undocumented immigrants. Wow.
  
  
• Rules for Thee, Not for Me: Speaking of hypocrisy, more than a few people have noticed that Trump, the same person who is villainizing the (again, largely peaceful) protesters in L.A., pardoned the 1/6 insurrectionists. What's the difference between the two groups? Hmmm... we'll have to ponder that.
  
  To give another example, on February 6 of last year, Noem declared: "If Joe Biden federalizes the National Guard, that would be a direct attack on states' rights." This weekend, she praised Trump for... federalizing the National Guard.
  
  
• Musk: This is not on any general list of signs of fascism, but maybe it should be: "If Elon Musk looks at what you're doing, and likes what he sees, there's a decent chance that you're a fascist." And reportedly, he's been warming back up to the Trump administration after seeing footage from Los Angeles this weekend.

The Politics

There were quite a few pieces yesterday, like this one from The Hill's Julia Mueller, which observes: "Democrats are accusing President Trump of an abuse of power with his decision to send the National Guard into Los Angeles, but they face a political tightrope in responding to the immigration protests that prompted the move." The piece quotes a Democratic strategist: "I think Trump has played this brilliantly, because there's really not a whole lot of middle ground between looking like you're supporting violent demonstrators and supporting law enforcement."

We are not Democratic strategists, but this was certainly not our assessment of the situation. It seems to us that this is actually very similar to the Abrego Garcia case—the issue is the gross abuse of power, and that is what the Democrats should be talking about. It was lack of due process for Abrego Garcia (and others), and now it's coming dangerously close to turning the National Guard into Trump's personal brownshirts.

It's fair to ask if maybe Democratic officeholders do a little too much triangulating when it comes to trying to have it both ways on issues. Perhaps—and we're just tossing this out—they should focus on what is right and what is wrong, and let the chips fall where they may. That said, if they really do want to turn this into a political calculation, poll after poll has made clear that while a majority support the administration's broader goal on immigration (i.e., reducing the number of undocumented people in the country), a HUGE majority opposes the way the administration has gone about it. To take one specific example, in a CBS/YouGov poll released earlier this week, respondents supported mass deportations of undocumented immigrants 54% to 46%. That's +8 points. However, they opposed the way the Trump administration has approached the problem 65%-35%. That's 30 points underwater. Yikes.

What's the Endgame?

As we note at the outset of this piece, we are not prone to overreacting. And we are far from the only ones who are worried that what's happening in Los Angeles could be the opening chapter in the move toward use of military and/or police force to impose the administration's agenda on people, up to and including the use of state-sanctioned violence to change the outcome of the 2026 and 2028 elections. See here, here, here, here, here, here, and here for pieces from other folks who are worried. We certainly hope that this is just an isolated incident, but vigilance is essential right now, just in case. (Z)

Never Forget: Confessions of a Reservist

We have to have at least one item that's not a total downer today. So, here's R.L.D. in Sundance, WY that there's honor in the ranks, even when leadership is as shady as all get out:

I've always been a bit ambivalent about my military service and status as a veteran. I served 7 years in the South Dakota Army National Guard back in the late 80s to early 90s. I had considered different options of service and decided on service in a reserve component because it allowed me to go to college right away. I did enlist for the educational benefits, but I also considered that being available to protect this country I love and the state I grew up in was a duty I could perform.

When I enlisted in 1986, the Cold War was showing no signs of thawing and everybody "knew" that if there was going to be another war, it would be nuclear. And if somehow it was a conventional war, they were going to need to re-institute the draft. My recruiter explained that people already in the Guard (and similarly the Army Reserve) would be called up based on the mission of their units and as whole units rather than the cattle call for cannon fodder that the draft would be. Seeing as how I lived in a town with at least three Minuteman missile silos within a ten mile radius (that I know of) that seemed like a good bet.

The other thing about service in the National Guard, specifically, is that as the organized state militia, there was an explicit civil disturbance mission, and regulations require Guardsmen and -women to get "riot control" training. My unit was (it's been decommissioned) based in Sturgis, SD. If you've not seen the Travel Channel in the past 20 years, you can be forgiven for not knowing this is the site of a huge motorcycle rally every August. My Guard service included the 50th Anniversary of the first Sturgis Rally and turnout was expected to be record breaking and feared to be violent. I remembered reading how bikers camping in the city park in the 70s got rowdy and pretty much shut down the adjacent highway. So not only did we get much more comprehensive crowd control training that year, but at the July drill, we were required to take our riot gear home with us so that it wouldn't be necessary to try to get to the armory in case we were called up. Fortunately for all concerned, we weren't.

When Desert Shield/Desert Storm came along, it changed everything. I heard from our counterparts from Sixth Army at an exercise after the end of hostilities that if Bush The Elder hadn't decided to stop where he did, all the units of our type in North and South Dakota would have been mobilized. Ultimately, I decided it was time for my service to come to an end (after extending my initial 6-year obligation one more year) and separated. I and the government paid off my student loans (which was less of a big deal back then than it is today), I got some free college credit (Basic Training counts as PE and ROTC classes have free tuition), the state of South Dakota had a program at the time for 50% off other tuition, and I benefited from the New GI Bill after completing advanced training. The enlistment bonus for signing up for a critical military specialty didn't hurt either. In general, reserve service without deployments earns fewer benefits, but I did qualify for a VA home loan (no down payment required) and was able to parlay that into my current home, which I own outright. Which is part of why I get so upset at my senator, Cynthia Lummis (R-WY) who flat out said she'd be happy to help homeless veterans if it didn't, you know, cost money. But I digress.

I benefited in less tangible ways as well. I learned that I could handle a LOT. There's an old story about a man who bit the head off a live frog every morning because that way he knew that nothing worse would happen to him for the rest of the day. Basic Training has a similar effect on your perspective. I get the in jokes. I don't need the acronyms and initialisms explained. I can (sort of) read a soldier's career from their dress uniform. Look, I consider myself an actor and a singer, with a degree in Spanish and History, which I turned into a career in IT. But I was also a soldier. To this day, decades later, I still feel siblinghood with all those who wore (and wear) the uniform and swore the oath. When those enlisted folks got into so much trouble for what happened at Abu Ghraib, I understood their obligations under the Law of War and why they needed to be held accountable. I also understand how much of a travesty it was that no one else in their chain of command was. And I know that swearing to defend the Constitution against all enemies is more than just a ceremony or a formality you go through to suckle at a government teat. It comes with obligations.

And I bristle at people who accuse me of "stolen valor" when the only things they know about me are that I swore an oath and disagree with them politically. Or that I wore a beret once (it was swag from "Weird Al" Yankovic's Mandatory Fun tour). It's especially jarring from people who most likely swore the same oath as government employees (which I have also done) and therefore know that the oath, by itself, doesn't come with any inherent valor. But I didn't go out of my way to get a free lunch at Longhorn Steakhouse on Veterans Day or avail myself of other such thank yous. The only active duty I ever served was active duty for training and I feel like others deserve recognition more than I do. If nothing else, there are nuances to my service that I just didn't want to have to explain if challenged. But my wife changed that. She is very proud of me for my service and has encouraged me to be more comfortable with that sentiment. I feel I have been pretty thoroughly thanked and repaid for my service, but now when people say "Thank you for your service" I just simply say, "You're welcome."

Thanks for being the palate-cleanser, R.L.D., after a bitter, bitter entree. (Z)

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