The National Guard and the Importance of Nonviolence

A Lesson from the L.A. Protests

Two weeks ago I said I would take the summer off this platform, but I allowed for an exception when I couldn’t resist the urge to post again. I’m invoking that exception today.

As you probably know, a panel of the 9th Circuit Court of Appeals ruled yesterday that the National Guard may stay in Los Angeles for now. The court’s unanimous decision by a panel consisting of two Trump appointees and one Biden appointee, all of whom had exemplary records as lawyers and public servants before their appointments, recognizes broad authority in the President to federalize the National Guard. That authority is based on the relevant statute, which provides that the President may call in the Guard whenever “[t]he President is unable with the regular forces to execute the laws of the United States.” As a preliminary matter, the court concluded that the President’s arguments for invoking this section on the facts of this case are probably correct. However, there are some important, though limited, qualifications to the court’s decision.

First, the court rejected the President’s argument that courts have no role in reviewing a President’s decision to call in the Guard, but it limited that part of its decision by ruling that courts must grant deference to the President’s decisions when they exercise such review. How much deference? After examining the relevant precedents, the court rejected “the federal government’s position that the President could federalize the National Guard based on no evidence whatsoever, and that courts would be unable to review a decision that was obviously absurd or made in bad faith.” Rather, the panel held, “courts may at least review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’”

Under this interpretation, a President’s burden to justify a decision to call in the Guard is extraordinarily light, but not non-existent. In evaluating a President’s invocation of the statute authorizing the National Guard’s federalization, judicial review and the separation of powers survive, though barely. And in light of their reliance on and extensive discussion of Supreme Court precedent, the panel suggests that their decision does not diminish the role of the courts in acting as a check on potential Executive overreach, but merely applies established principles to the set of facts before them.

Second, the court expressly limited its decision to “hold that the President likely has authority to federalize the National Guard,” explaining that “nothing in our decision addresses the nature of the activities in which the federalized National Guard may engage.” That question remains to be answered, first in the district court which had held after its emergency hearing that the question was premature. That judge, and this appellate court, might still hold that the Guard’s role must be limited to protecting federal officials in the exercise of their duties and federal property. We should expect California to make that argument as the case moves forward.

But besides those qualifications, there is another important lesson to be learned from the court’s decision — namely, that violent acts in civil protests hurt the protestors’ cause.

When applying its interpretation of the relevant statute to the facts presented to the court, the court held that the President likely acted within the broad scope of his authority because some protestors were physically attacking ICE agents and other federal officers and vandalizing federal property. The court describes the evidence in the early pages of its decision and summarizes it this way near the end:

The undisputed facts demonstrate that before the deployment of the National Guard, protestors “pinned down” several federal officers and threw “concrete chunks, bottles of liquid, and other objects” at the officers. Protesters also damaged federal buildings and caused the closure of at least one federal building. And a federal van was attacked by protesters who smashed in the van’s windows. The federal government’s interest in preventing incidents like these is significant.

In response to the state’s argument that the presence of the National Guard worsened, rather than improved, tensions on the ground and impaired the Guard’s ability to assist the state in fighting forest fires and combating drug trafficking, the decision again emphasizes the evidence of protestor violence targeting federal officials and buildings:

[The state’s] concerns are counterbalanced by the undisputed fact that federal property has been damaged and federal employees have been injured, and the evidence presented at the TRO hearing showed that the federalized National Guard members were engaged only in protecting federal personnel and property.

There are obvious reasons why some leaders, including Governor Newsom and Mayor Bass in this case, implore protestors to remain nonviolent. They include preventing injury to people on the ground and avoiding the public perception that the protestors are violent criminals who can’t be trusted. But, as this decision demonstrates, another reason for maintaining a strict policy that protests remain peaceful is to avoid creating circumstances that could legally justify the use of force against the protestors.

Martin Luther King, Jr. and Congressman John Lewis understood this principle when they led nonviolent civil rights demonstrations. Robert F. Kennedy understood it the night MLK was killed, when he counseled the public not to react violently to the news of the civil rights leader’s assassination. And anyone who’s engaged in protests against the current and any future Administration should understand it if they wish to avoid an escalation of the federal government’s response to their protests.

Applying this lesson won’t always be easy. Whenever hundreds or thousands of people gather to protest perceived injustices, there are likely to be some who can’t control their anger. And one shouldn’t dismiss the possibility of pro-government agitators infiltrating the crowds to provoke or create a violent response that the government could then use to send in National Guard units. But whatever one thinks of the panel’s decision, and however the case unfolds going forward, it would behoove protest organizers anywhere in the United States to emphasize and enforce as best they can a strict policy of peaceful protest if they want their important messages to be heard.