The Trump administration argues that the legal authority for sending military forces to Los Angeles is based on the president’s inherent Article II “protective power.” That authority would allow a president to use military personnel to protect federal buildings and federal personnel, according to decades-old opinions by the Justice Department’s Office of Legal Counsel (OLC).
However, there’s a catch: The same OLC opinions state clearly that the protective power can be exercised only if state and civilian authorities cannot or will not provide adequate protection. The required showing is consistent with the traditional American aversion to having the military involved in domestic civilian affairs.
It is doubtful that the situation in Los Angeles could meet the test of “necessity,” particularly at the time that President Donald Trump federalized the California National Guard and sent in the Marines.
The state of California, however, has not yet raised this point in the ongoing litigation. That is a missed opportunity – especially since Judge Charles Breyer held that “[w]hile ICE was not able to detain as many people as Defendants believe it could have, ICE was nonetheless able to execute the federal immigration laws,” without the need for the National Guard. (Judge Breyer made the finding in assessing a different question involving the statutory conditions for federalizing the Guard.)
That said, the state of California can still raise the argument as the litigation turns more toward the legal basis for deploying the Marines and not just the statutory conditions for federalizing the Guard.
Below are passages from key texts: The principal OLC Opinion (1967) setting forth the protective power, a 1970 OLC Opinion describing the test of “necessity,” a U.S. Army legal opinion, and a Department of Defense instruction. Notably, the OLC drew heavily from such DoD sources in articulating the constitutional understanding of the protective power.
1. Memorandum for the General Counsel, Department of the Army, from the Office of Legal Counsel, Re: Use of Federal Troops to Protect Government Property and Functions at the Pentagon Against Anti-War Demonstrators (Oct. 4, 1967):
“The Nonstatutory Ground. The use of Federal troops to protect Federal property is specifically regulated by subparagraph 11.a of Army Regulations (AR) 500-50, 19 July 1961, which provides as follows:
‘The right of the United States to protect its property by intervention with Federal troops in an emergency is an accepted principle of our Government. The exercise of this right is an executive function and extends to all Government property of whatever nature and wherever located, including premises in the possession of the Federal Government. Intervention is warranted where the need for protection of Federal property exists and the local authorities cannot or will not give adequate protection.’
… [It is believed that subparagraph 11.a of AR 500-50 … are valid statements of law.”
“It is believed that the Posse Comitatus Act does not prohibit the proposed use of Federal troops on this ground, in the event that the civil authorities are unable to provide adequate protection.”
2. Memorandum for the Robert E. Jordan III, General Counsel, Department of the Army, by William Rehnquist, Assistant Attorney General, Office of Legal Counsel, Authority to use troops to protect federal functions, including the safeguarding of foreign embassies in the United States (May 11, 1970)
“[T]roops may be used when necessary to carry out and protect federal functions — and we have concluded that they may ….
The reference to use of troops ‘when necessary’ should be emphasized. As noted below, the inherent authority to use troops should not be exercised to perform routine and normal police functions such as protection against burglary The authority should be exercised only in the extraordinary circumstances where normal measures are insufficient to carry out the federal function …”
3. Robert E. Jordan, III, Gen. Counsel, Dep’t of the Army, to William Rehnquist, Assistant Attorney General, Office of Legal Counsel (Apr. 28, 1970) (with gratitude to Chris Mirasola for making this document publicly available)
“Both the Army and the Department of Justice have, in the past, taken the view that the Federal Government has the inherent authority to protect Government property and prevent interference with Federal functions. It has been clearly recognized that civilian law-enforcement agencies must first be used in these situations. However, it has also been recognized that, when the situation is beyond the capability of civilian agencies to handle, the Government has the inherent authority to use military forces and the Posse Comitatus Act does not bar such use.”
“I would suggest a further implied limitation on the authority to use troops under the Neagle doctrine: That the authority rest on the quasi-martial law principle of necessity; that is, that its existence be predicated upon a finding that, in the particular case, the functions of Government cannot adequately be protected by civil authorities, whether Federal or State. As I read the 1967 opinion of your office, page 6, a similar limitation is implied in that opinion.”
*Remarkably, Jordan’s letter to Rehnquist criticized a November 14, 1969 OLC Opinion that Rehnquist wrote on the protection of embassies in the United States. Jordan asked for the November 1969 Opinion to be revised and was concerned that it was inconsistent with the October 1967 Opinion on the general scope of the protective power. Rehnquist and the OLC did as Jordan requested. In the May 11, 1970 Opinion (#2 above) Rehnquist admitted the November 1979 memo was “hastily written” and “appears inconsistent with the views express by this Office in October 1967.”
4. Department of Defense, Instruction 3025.21 (Feb. 27, 2013):
“Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are …
Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances because:
…
When duly constituted Federal, State, or local authorities are unable or decline to provide adequate protection for Federal property or Federal governmental functions. Federal action, including the use of Federal military forces, is authorized when necessary to protect Federal property or functions.”
