The NYT writes that djt has side-stepped normal procedure and blew off governor Newsome's authority over the California National Guard:
President Trump took extraordinary action on Saturday by calling up 2,000 National Guard troops to quell immigration protests in California, making rare use of federal powers and bypassing the authority of the state’s governor, Gavin Newsom.
It is the first time since 1965 that a president has activated a state’s National Guard force without a request from that state’s governor, according to Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice. The last time was when President Lyndon B. Johnson sent troops to Alabama to protect civil rights demonstrators in 1965, she said.Governors almost always control the deployment of National Guard troops in their states. But the directive signed by Mr. Trump cites ”10 U.S.C. 12406,” referring to a specific provision within Title 10 of the U.S. Code on Armed Services. Part of that provision allows the federal deployment of National Guard forces if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.”
Mr. Trump’s directive said, “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.”
Note that djt's reasoning includes protests, not acts of violence during protests, as his justification to provoke a state response. djt can then use a state response to justify further attacks on and violence against the state if he wants to.
An AP article discusses the situations when a president has called up the National Guard without consent of governors. It is a rare event. But as usual, there is slop in the law. In this case, the severity of the civil protest that triggers presidential authority is not defined. So while what djt did is legal, it is unjustifiable and illegitimate. The severity of protests in California were nothing close to those that triggered the law in the past. But as the AP reports, djt has made it crystal clear that he wants to use military force to shut down protests that he wants shut down.
While what djt has done with this National Guard deployment is technically within the scope §12406, it is illegitimate because the severity of the unrest to trigger the law falls far short of what has been the norm. The protests, although tense, did not approach the threshold of rebellion or insurrection required to justify federal military intervention. One expert on dictatorship who has been warning about djt's and MAGA's authoritarianism, Kim Lane Scheppele, refers to actions like this as autocratic legalism.[1] Scheppele points out that authoritarians exercising autocratic legalism, are using their statutory interpretation to hide authoritarian power grabs and to provoke serious rebellion or violent protests that can justify more intrusive federal interventions.
A Feb. 12, 2025 post here, Legal analysis: Can the US Constitution accommodate authoritarianism or kleptocracy?, argued that it is possible to stay within (or close to) the scope of the Constitution and laws and still establish a deeply corrupt dictatorship. There is sufficient ambiguity and lack of precision (slop) to allow for such an outcome. What djt has done to California is an example of what was argued in that blog post, he took advantage of the slop to legally declare war on California for no good reason.
Footnote:
1. This is the abstract of Scheppele's 2018 University of Chicago Law Review paper, Autocratic Legalism:
Buried within the general phenomenon of democratic decline is a set of cases in which charismatic new leaders are elected by democratic publics and then use their electoral mandates to dismantle by law the constitutional systems they inherited. These leaders aim to consolidate power and to remain in office indefinitely, eventually eliminating the ability of democratic publics to exercise their basic democratic rights, to hold leaders accountable, and to change their leaders peacefully. Because these “legalistic autocrats” deploy the law to achieve their aims, impending autocracy may not be evident at the start. But we can learn to spot the legalistic autocrats before autocratic constitutionalism becomes fatal because they are often following a script using tactics that they borrow from each other. This Essay explains the paths that these autocratic legalists take, the danger signals that accompany their legal reforms, and the methods they use to dismantle liberal constitutions. The Essay also suggests how the legalistic autocrats may be stopped.