The Statutory Framework and Alleged Violations
At the heart of the lawsuit is 10 U.S.C. § 12406, a federal law governing the circumstances in which the President may federalize state National Guard troops. The statute allows such federalization only in cases of invasion, rebellion, or when regular military forces are unable to execute federal law. Importantly, it states, “Orders for these purposes shall be issued through the governors of the States.”
California argues that the Trump administration failed to comply with both the substantive and procedural requirements of this law. The complaint asserts, “Defendants did not notify Governor Newsom of the orders or attempt to obtain his consent. Nor did they issue their orders through the Governor as the statute directs. This circumvention deprived the Governor of the opportunity that compliance with the terms of the statute would have afforded him—at a minimum, consultation with the President or other federal officials not only as to whether the California National Guard should be called into federal service at all, but if so, which service members and in what number should be called, and for what purposes and what period of time”.
The lawsuit further contends that the President’s orders did not meet the threshold for any of the conditions specified in § 12406. As the complaint explains, “The Trump Memo does not (and cannot) assert that California is being invaded or is in danger of invasion by a foreign power. Nor has the Trump Administration identified a ‘rebellion,’ which is generally understood to connote ‘an organized attempt to change the government or leader of a country, [usually] through violence,’ something much beyond mere protest or sporadic acts of disobedience and violence… nothing about the scale of the protests or acts of violence set these events apart from other recent periods of significant social unrest”.
