Here are legal issues raised by Trump鈥檚 order for national 鈥榪uick reaction force鈥�
President Donald Trump鈥檚 executive order directing the Pentagon to create a 鈥渜uick reaction force鈥� within the National Guard sparked some confusion and a number of questions among U.S. military experts when it was issued last week.
Among them: why a QRF, as it鈥檚 known in military parlance, needs to be created in the first place, since the National Guard already has one. Military and national security law experts are wrestling, too, with the legal underpinnings for deployments to states that don鈥檛 want them.
The executive order calls for the Defense Secretary to create a 鈥渟tanding National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment鈥� to help federal and state law enforcement in 鈥渜uelling civil disturbances and ensuring the public safety and order whenever the circumstances necessitate.鈥�
Why We Wrote This
President Donald Trump wants the Pentagon to create a 'quick reaction force' using National Guard units. But U.S. law bars the military from being used as domestic law enforcement. With few details in the executive order, it's unclear how such a unit would navigate legal and political concerns.
Those questions surrounding it were thrown into sharp relief on Tuesday with a verdict in a lawsuit brought by California, objecting to the Guard鈥檚 June deployment to Los Angeles. A federal judge . The Trump administration says it will appeal. As the president continues promising to deploy Guard troops in novel ways, ensuing legal questions will likely have to be settled in the courts.
The National Guard should certainly be used in cases 鈥渨here authorities are overwhelmed by some massive obstruction to the enforcement of federal law,鈥� says Joseph Nunn, counsel in the Brennan Center鈥檚 Liberty and National Security Program. But local law enforcement has not been overwhelmed in the recent instances in which the president has been deploying Guard troops.
Some experts acknowledge the need to have reinforcements available in times of crisis 鈥� and some also say efforts to reduce crime in Washington and other American cities could benefit from more hands on deck. But they worry about the consequences of Mr. Trump鈥檚 aims.
The executive order 鈥渕akes it easy to deploy military personnel anywhere, at any time, for any purpose,鈥� and signals that the White House 鈥渨ants to involve the military in routine civilian law enforcement across the country,鈥� Mr. Nunn says.
In the California lawsuit, U.S. District Judge Charles R. Breyer cited the Founding Fathers in ruling that the deployment violated the Posse Comitatus Act, which prohibits the U.S. military from being used in a law enforcement capacity. 鈥淩esentment of Britain鈥檚 use of military troops as a police force was manifested in the Declaration of Independence, where one of the American colonists鈥� grievances was that the King had 鈥榓ffected to render the Military independent of and superior to the Civil power,鈥欌�� the judge wrote.
The U.S. Code provides for some exceptions, such as under Title 10 if National Guard troops are deployed under federal control to quell an invasion or rebellion, or under Title 32 in a hybrid role, where Guard forces are undertaking a federal mission, with federal funds, while under state command.
Current National Guard Reaction Forces, already established in each state, are designed for rapid, local crisis response under a governor鈥檚 command. Mr. Trump鈥檚 executive order directs Defense Secretary Pete Hegseth to 鈥渆nsure the availability of鈥� a national quick reaction force, implying federal control.
Mr. Nunn says doing so would amount to using U.S. military troops in ways the Founding Fathers warned against. These risks, critics add, include widening the civil-military divide, potentially eroding constitutional rights, and diverting troops from their intended military purpose.
Mr. Trump appeared last week to acknowledge the downsides of deploying the Guard in places they are not wanted but said, 鈥淲e may just go in and do it.鈥�
Unaddressed questions
Apart from the politics, national security experts are poring over the legal questions raised by creation of a National Guard quick response force.
鈥淚 see nothing that will legally prohibit what the president is seeking to do in the executive order,鈥� says Mark Nevitt, who served as a lawyer in the Navy and as a professor of law at the U.S. Naval Academy. But Mr. Trump鈥檚 order, he adds, raises questions that have not been addressed.
The directive stipulates that Guard units in the response force be trained 鈥� but what kind of training is unclear. So, too, is under what legal authorities the troops would be operating.
The hybrid status of Title 32 authority could also serve as a 鈥渓oophole鈥� around the Posse Comitatus Act, Mr. Nevitt, now an associate professor at Emory University School of Law in Atlanta.
The president could request that National Guard units support a federal mission under this authority to fight crime or even enforce federal immigration law in a city, for example.
鈥淢aybe a red state governor agrees to that,鈥� Mr. Nevitt says. Should the president send the National Guard to a city like Chicago, for example, against the wishes of the Illinois governor, 鈥渢hat, in my view, would be a violation of the state sovereignty of Illinois. Illinois is not welcoming this outside force into the state, and so that would immediately be a subject of a lawsuit, and I think Illinois has a very, very strong case.鈥�
But Mr. Trump has other arrows in his quiver. He claimed Title 10 authority when he sent the Guard to Los Angeles in June, citing the need to protect federal law enforcement operations dealing with immigration.
Is the Guard a long-term solution?
President Trump deployed the Guard to Washington because, he wrote in his Aug. 11 executive order, federal workers and others were threatened by a 鈥�.鈥� The U.S. Justice Department, weeks before Mr. Trump was inaugurated, announced that . On the ground, the picture was more nuanced: Last week, Washington鈥檚 Democratic mayor, Muriel Bowser, said the deployment had helped local police efforts and had led to fewer violent crimes. On Tuesday, she .
Carrie Cordero, general counsel at the Center for a New American Security, noted that overall crime in Washington is about at the same level as it was 20 years ago, as opposed to 10 years ago when it was lower.
鈥淏ut if one takes the crime issue at face value and says, 鈥榊ou know what? The current situation in D.C. is simply not acceptable and there really is a problem,鈥� the National Guard is not going to be a long-term solution,鈥� she says.
If the federal government wants to develop a QRF to surge and help local law enforcement, 鈥淭he better approach would actually be to have that come out of federal law enforcement agencies,鈥� such as the departments of Justice and Homeland Security, adds Ms. Cordero, earlier this year. They would be trained on how to assist law enforcement while respecting protections against unreasonable search and seizure and Miranda rights, she says.
Using National Guard forces, by contrast, 鈥渆xposes Americans to soldiers who are not necessarily trained to uphold constitutional rights,鈥� Mr. Nunn says.
There is an opportunity cost, too. Engaging in local law enforcement compromises their military readiness for national security emergencies, including supporting U.S. military missions, Ms. Cordero adds. 鈥淚 would argue that鈥檚 going to be compromised if they are overused for domestic law enforcement,鈥� she says.
The National Guard is designed, when it is federalized, in large part to support U.S. military activities abroad 鈥� a chief reason why Posse Comitatus bars them from conducting law enforcement in these instances.
The U.S. military 鈥渋s and should be a fundamentally outward-looking entity,鈥� Mr. Nunn says. 鈥淚t should be focused on foreign interests.鈥�
In his decision in the California case, Judge Breyer wrote that 鈥渢here was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.鈥� Yet the judge did not order the administration to remove the 300 Guard troops still in Los Angeles, and said the troops could be used 鈥渃onsistent with the Posse Comitatus Act鈥� 鈥� for example, to protect federal property.
Mr. Nunn says the country 鈥渋s not on the verge of a military coup.鈥� But, he cautions, 鈥渢his is a road that you do not want to take even one step down.鈥�
