On June 7, President Trump asserted control over California’s National Guard. In this episode, Professor Michael Ramsey of the University of San Diego School of Law and Liza Goitein of the Brennan Center join Jeffrey Rosen to explore the meaning of 10 U.S.C. 12406 and unpack California Governor Gavin Newsom’s lawsuit challenging the legality of President Trump’s actions.
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Today’s episode was produced by Griffin Richie, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Griffin Richie, Samson Mostashari, Cooper Smith, and Gyuha Lee.
Participants
Michael Ramsey is the Warren Distinguished Professor of Law at the University of San Diego School of Law. Michael clerked for Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia of the U.S. Supreme Court. He co-edited the book International Law in the U.S. Supreme Court: Continuity and Change, and wrote an excellent blog post on The Originalism Blog about Newsom v. Trump.
Liza Goitein is senior director of the Brennan Center’s Liberty and National Security Program. She is a nationally recognized expert on presidential emergency powers, government surveillance, and government secrecy. Before joining the Brennan Center, she served as counsel to Senator Russ Feingold, chair of the Constitution Subcommittee of the Senate Judiciary Committee. She graduated from Yale Law School and clerked for Judge Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit. She is the author of a very helpful analysis of Trump’s National Guard order in Just Security.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Michael Ramsey, “John Yoo on Presidential Authority to Use the National Guard,” The Originalism Blog (June 13, 2025)
- Elizabeth Goitein, “Unpacking Trump’s Order Authorizing Domestic Deployment of the Military,” The Brennan Center (June 10, 2025)
- Elizabeth Goitein, “Preventing Use of National Guard to Evade Posse Comitatus Act,” Center for a New American Security (May 20, 2025)
- Newsom v. Trump, Northern District of California (June 12, 2025)
- Martin v. Mott (1827)
Excerpt from interview: Michael Ramsey contends that under 10 U.S.C. § 12406, the president has discretion to determine when he is unable to execute the law and that this case is non-justiciable because judges should not involve themselves in those discretionary determinations.
Michael Ramsey: Marbury said, this was the case, of course, that famously established judicial review. And Marbury said that it's the province of the court to say what the law is. And that's the part of Marbury that's usually quoted. But Marbury also made a very important point which was that in areas where the President has discretion, it's not for the court to second guess the president's discretion, because that's the President's executive power. And Chief Justice Marshall made that point in Marbury several times to emphasize the narrowness of the decision that he was making, even though it's a very important decision about the court's power to interpret the law. And so the Mott case, I think, just follows from that, that when the president makes a discretionary determination under a statutory standard, then it's the president's call. And it's not for the courts to second guess the way the president sees the facts on the ground and decides whether the use of the militia, the use of the guard in this case, is necessary.
And I think that then that goes to the current question of we can debate whether the situation in Los Angeles was so out of control that the president wasn't able to appropriately enforce the law. I'd like to point out that although Liza used the word completely unable, that's not in the statute. It's just unable. And I think a reasonable understanding of unable means that when the federal operations are being interfered with and that there are threats against the safety of federal agents, that the president is entitled to bring in additional force. Now, what additional force should he bring in? Maybe there's other federal forces that are available, but it's, again, a discretionary determination as to whether those forces are actually available or whether they're tied down doing other things. This is all a very complicated assessment that I think is completely inappropriate for judges to make.
Once we get past the legal point that the president has an authority granted by the statute, granted by the Constitution, and I'm satisfied that he does. And then the question of when it's disputed whether the facts indicate that the best move, the safest move to protect the federal agents is to use the guard versus some other option, maybe there's not enough of threat, maybe we let the federal agents go out and see what happens and see if they get attacked. These are the kinds of things I think are entirely inappropriate for judges to be doing and that is I think the core Trump administration argument that I find most persuasive in terms of how there should be deference from the judiciary to the president's factual determinations as to the necessity on the ground.
Excerpt from interview: Liza Goitein discusses the history of the invocation of 10 U.S.C. § 12406 and the Insurrection Act, arguing that deploying federal troops under these laws should be reserved only for the most extreme cases.
Liza Goitein: So just starting with the history of the invocation of 12406… it has been used on its own on that one occasion to deal with the postal strike where, in fact, the president was unable to execute the law. And on other occasions, it has been used in conjunction with the Insurrection Act, such as when President Eisenhower invoked the Insurrection Act and 12406, which at the time was codified in a different part of the U.S. Code, to federalize the Arkansas National Guard, order them to stand down, and send active duty troops to Little Rock, Arkansas to enforce the Supreme Court's order. So that's the history of 12406. As you can see, there's very little to go on here in terms of interpreting 12406 as a stand-alone authority. One brief response to something Mike said that he thought a better interpretation, rather than interpreting it literally as unable to execute the law, it should be interpreted as if there's interference with the execution of the law. I would say that proves way too much. There are often federal law enforcement faces interference to their efforts all the time. That interference has to have an impact, some kind of impact, on the actual ability of the federal government to execute the law, of the president to execute the law.
And again, there was no evidence in the record. There was a lot of evidence of what was happening on the ground, but no evidence that it actually prevented any arrests of migrants or any of this execution of the law. So moving on to the Insurrection Act. The Insurrection Act is the primary exception to the Posse Comitatus Act, which is, of course, the law that prohibits federal armed forces from participating in law enforcement unless expressly authorized by Congress or by the Constitution. The Insurrection Act, on its face, gives the president very broad discretion to deploy federal armed forces and to federalize the National Guard and deploy National Guard forces to suppress insurrections or rebellions, to quell domestic violence, and to execute the law when it's being obstructed. Now, even though the terms of this law are extremely broad, broader actually than the terms of 12406, and there is no requirement that the orders be issued through the governor of the state, the Department of Justice has historically interpreted the Insurrection Act more narrowly in keeping with the Constitution and tradition.
And what the Department of Justice has said is that the law should not be invoked unless the state has requested assistance to suppress an insurrection, essentially, where there is active obstruction or defiance of a federal court order, or where state and local law enforcement have completely broken down. And in practice, what that has meant, that last prong, is that either state and local law enforcement are trying very hard to control the situation, but they're overwhelmed, in which case they almost always ask for assistance, or the state and local law enforcement are part of the problem, they are the problem. They are either not making any attempt to control violence or a threat of violence directed against a certain class of people, as we saw during the civil rights era, or they are actively defying or obstructing a federal court order. So that has been the interpretation by the Department of Justice of this very broad law in the past. It's been a much more narrow interpretation, again, in keeping with this principle that quelling civil unrest, enforcing the law, that these are responsibilities of civilian law enforcement. For quelling domestic violence, it's really the responsibility of state and local law enforcement under the Constitution in all but the most extreme cases. And so federal deployment of federal military troops should be an absolute last resort.
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