Deploying Troops to Anti-ICE Protests Is Unconstitutional (1)

Last week, when the Trump administration deployed National Guard troops and Marines to de-escalate immigration protests in Los Angeles, the country crossed a constitutional line. For those of us who’ve spent years navigating the complexities of immigration law, this isn’t just about policy. It’s about power, rights, and what it means to be heard in a democracy.

Many immigrant communities already live in fear of ICE raids and government surveillance, and this military presence sends a chilling message. Protesters who might otherwise speak out are now weighing whether doing so puts their families at risk. That’s not what having First Amendment rights looks like.

The legal foundation for the deployment is shaky at best. If this kind of deployment stands, it could open the door for future presidents to send troops into states without emergencies, without consent, and without accountability. The Ninth Circuit decided June 19 to allow the troops to remain deployed for now, without reaching the merits of the issue.

The administration has pointed to 10 U.S.C. § 12406, which allows federal control of the National Guard during insurrections or if a state can’t enforce federal law.

Let’s be clear: There was no insurrection or breakdown of local control. Law enforcement in Los Angeles has said as much.

Notably, the White House didn’t turn to the Insurrection Act, the usual tool in historic crises such as the Little Rock desegregation protests in 1957 or the Selma to Montgomery marches in 1965. In each of those instances, states were openly defying federal law.

What took place in California isn’t that. The state isn’t standing in the way of enforcement. It’s objecting to federal intrusion on its own governance.

Further, federalizing the National Guard without the governor’s approval isn’t just a procedural misstep; it’s a constitutional red flag.

California Gov. Gavin Newsom has been unequivocal. He didn’t consent to this deployment, suing the Trump administration in response. And under the Tenth Amendment, that matters. Normally, National Guard troops fall under state control.

Then there’s the Posse Comitatus Act, which limits the military’s role in civilian law enforcement. The administration insists the troops were only there to guard federal buildings. But what happened on June 13 tells another story. Outside the Wilshire Federal Building, Marines zip-tied and detained a civilian protester. That action resembles law enforcement and raises serious legal questions.

Legally, the move lands in what Justice Robert Jackson once called the “zone of twilight” in Youngstown Sheet & Tube Co. v. Sawyer, when presidential power is weakest because it clashes with a state’s clear opposition and lacks congressional backing. And that’s exactly the dynamic playing out here.

On June 12, US District Judge Charles Breyer issued a temporary restraining order halting the deployment.

He found no basis for using § 12406 and suggested the move likely violates the Tenth Amendment. But the US Court of Appeals for the Ninth Circuit quickly paused that order.

On June 17, a three-judge panel of the US Court of Appeals for the Ninth Circuit heard the federal government’s appeal of a temporary restraining order. The argument was about emergency relief, not the ultimate merits.

The US Department of Justice’s Assistant Attorney General Brett Shumate emphasized that “there’s no role for the court to play in reviewing” the president’s Title 10 authority to federally activate the National Guard to protect federal property during protests.

In contrast, California DOJ’s Deputy Solicitor General Samuel Harbourt argued the deployment was “unprecedented”; breached the Insurrection Act, Posse Comitatus, and Tenth Amendment; and that the protests fell far short of a “rebellion.”

The three-judge panel appeared to lean toward supporting the federal government’s argument that presidential authority under Title 10 to federalize the National Guard is largely immune from judicial review.

Two Trump appointees, Judges Mark Bennett and Eric Miller, expressed skepticism about California’s stance that the president must consult or seek approval from the governor.

Bennett questioned whether courts even have a role if the president provides no justification for deployment, and Miller suggested that notifying the adjutant general, rather than the governor directly, satisfied the statutory requirement “issued through” the governor.

During the hearing, the federal government relied heavily on the 1827 US Supreme Court case Martin v. Mott to argue that the president’s decision to activate the National Guard isn’t subject to judicial review.

California pushed back, asserting that Martin involved a wartime context and shouldn’t be read to give the president unchecked authority to override a governor’s control of state forces during domestic protests.

Judge Jennifer Sung specifically pressed California on why Martin shouldn’t control the outcome here, suggesting she found the precedent weighty and possibly binding.

The court issued a written decision June 19 where the Ninth Circuit granted the federal government’s motion for a stay of the district court’s temporary restraining order. The court concluded that Trump had likely acted lawfully under 10 U.S.C. § 12406(3), which authorizes federalization of the National Guard when the president determines that federal law can’t be executed with regular forces.

The panel emphasized that presidential determinations under this provision are subject to judicial review, but highly deferential review, citing Martin v. Mott and subsequent precedent. The court also held that the statutory requirement that orders be issued “through the governor” was likely satisfied when the Department of Defense transmitted the order through California’s Adjutant General, consistent with state law authorizing the Adjutant General to act in the governor’s name.

Even assuming a procedural flaw, the court found that such a defect would not warrant the breadth of the district court’s injunctive relief. In evaluating the equities, the panel determined that ongoing threats to federal officers and property weighed in favor of granting the stay. Although this was not a decision on the ultimate merits, the opinion reflects the court’s view that the federal government has a strong likelihood of success, suggesting that the core legal and constitutional claims raised by California may not prevail at the final stage.

California has filed a separate motion to block the National Guard from aiding ICE, arguing that even so-called “protective” deployments escalate fear during enforcement operations. And there’s more than just constitutional harm at stake; there’s a price tag. Estimates suggest the deployment could cost more than $134 million.

Meanwhile, the protests continue. On June 14, tens of thousands gathered in Los Angeles—and around the country—for what organizers called “No Kings Day.” It wasn’t just a rally. It was a declaration that dissent isn’t rebellion. That immigration policy doesn’t justify military intimidation. That we can’t normalize troops at protests.

And that’s what this really comes down to. This isn’t just a clash over enforcement strategy. It’s a high-stakes fight over civil liberties, state sovereignty, and the role of the military in public life.

The courts must draw the line. In a constitutional democracy, exercising one’s rights should not require courage in the face of military presence. It should require only the law.

The case is Newsom v. Trump, 9th Cir., No. 25-3727, temporary restraining order stayed 6/19/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Abhinav Tripathi is an immigration attorney based in California, currently serving as the founder & principal attorney at Protego Law Group, LLP.

Rachaita Saha is an immigration attorney and associate attorney at the Law Office of Robert B. Jobe in San Francisco.

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