Power on the streets

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LINDSAY MAST, HOST: Coming up next on The World and Everything in It: The National Guard on the streets of American cities.

The Trump administration’s deployment of state-based military reserves to respond to unrest and protect federal property has raised questions.

MARY REICHARD, HOST: WORLD’s Josh Schumacher has the story.

JOSH SCHUMACHER: On May 1, 1992, President George H.W. Bush deployed the National Guard to Los Angeles.

BUSH: I will use whatever force is necessary to restore order.

Widespread riots had broken out after a jury acquitted four police officers of assault… even after they’d been caught on video beating a black man by the name of Rodney King.

Before the 1950s, U.S. presidents didn’t deploy the National Guard to maintain law and order domestically. Since then, they’ve only done it a handful of times. Before the Rodney King riots, President Lyndon Johnson deployed the National Guard to protect protesters at Martin Luther King Jr.’s 1965 March from Selma to Montgomery, Alabama. Johnson did so again to quell the race riots in 1967.

JOHNSON: The federal government should not intervene except in the most extraordinary circumstances. The fact of the matter however is that Law and order have broken down in Detroit, Michigan.

And then one year later, the Guard responded to riots in Washington, D.C., following the assassination of Martin Luther King Jr.

Now, President Donald Trump has deployed the National Guard to Los Angeles and several other American cities…all within one year.

TRUMP: These are unsafe places, we’re going to make them safe.

Trump has said the goal is to crack down on rampant crime, but the specific justification is protecting federal immigration facilities and personnel from protesters. In Los Angeles, Portland, Oregon, and Chicago, protesters have gathered at federal immigration facilities… and in some cases engaged in violent acts against federal authorities protecting the buildings.

But some legal experts say pulling in the National Guard goes too far.

Brenner Fissell is a law professor at Villanova University.

FISSELL: I think that the justification that they're giving, which is to protect federal assets, has a requirement which has not been met, which is that the local police are unable or unwilling to, um, to step up. And that has not been the case.

Local police have been on the scene to confront protesters in Portland, Oregon, and in Los Angeles. But in Chicago, Mayor Brandon Johnson signed an executive order prohibiting local police from assisting federal immigration personnel.

Essentially, Fissell explains that things have to get so out of control that local police are overwhelmed… and it’s no longer possible to enforce federal laws, or other types of laws for that matter.

That was the case during the Rodney King riots. And it was also the case in Massachusetts in 1786.

BRAVER: In Shay's Rebellion, it wasn't a riot. It wasn't that they were just destroying random property.

Joshua Braver is a law professor at the University of Wisconsin’s Law School.

BRAVER: It's that farmers were upset that courts were going to foreclose on their farms, and they shut down the courts. So if you shut down the courts, If you take over an entire city… that might also be a reasonable opportunity for the federal government to step in.

Braver says National Guard deployments are only supposed to be a last resort.

But administration supporters say there is precedent for using the National Guard to ensure the proper enforcement of American laws, even when a city isn’t burning down.

Zack Smith is a senior legal fellow at the Heritage Foundation.

SMITH: President Eisenhower, actually sent in the 101st Airborne active duty troops into Little Rock, Arkansas to make sure that the civil rights, the federal civil rights of American citizens were being guaranteed. And so there is ample precedent, ample authority for presidents using National Guard, even using active duty troops to make sure that federal law can and will be enforced.

The Ninth Circuit Court of Appeals last week ruled that the Trump administration was acting within the bounds of its authority when it deployed the National Guard to Portland, Oregon.

The court of appeals also said that protesters had engaged in violent acts against federal agents at Portland’s ICE facility… and had even succeeded in shutting down operations at the building.

But the courts are split on this issue. The 7th Circuit Court of Appeals in Illinois has stopped the administration from deploying federal troops on the streets of Chicago while legal proceedings play out.

Trump has threatened to invoke the Insurrection Act in order to get the National Guard troops back onto the streets. Fissell says that would be an over-the-top measure.

FISSELL: The Insurrection Act requires an insurrection… even violent protests that become riotists are not rebellions against the authority of the United States. They're breaking laws to be sure if you're violent and rioting, but it's not an insurrection in the meaning, which is like a group of people who are challenging the actual basic authority of the government.

Fissell acknowledges that the text of the Insurrection Act leaves it up to the president to decide when obstruction of government activities is severe enough to invoke the statute.

FISSELL: He has a lot of authority under the Act to it says “Whenever the president considers…” So some have argued that there's no way to review that. It's up to him. Now, whether, I mean, but I can still say he's wrong to do it.

While Fissell emphasizes that none of the protests against ICE activities have turned into actual rebellions against government authorities… that determination is still left up to the president.

So far, Trump’s threats to invoke the Insurrection Act are still just threats.

Reporting for WORLD, I’m Josh Schumacher.

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