The National Guard holds a unique place in the U.S. military system. Consisting of more active duty members than every other branch except the Army, it primarily serves under state control but can be placed under federal command. That flexibility led to a courtroom battle between California and the Trump administration.
In an executive order issued on June 7, 2025, President Donald Trump claimed that protests in Los Angeles were "a form of rebellion" and sent in both California National Guard troops and U.S. Marines over the protests of California Governor Gavin Newsom and Los Angeles Mayor Karen Bass. An appeals court overturned a decision that stated Trump had exceeded his authority with the deployment. However, a federal judge ruled on September 2, 2025, that the continued deployment and use of National Guard troops as a "national police force" was illegal.
U.S. District Judge Charles R. Breyer placed his injunction ordering the troops to be either sent home or limited to guarding federal buildings on hold for 10 days in anticipation of an appeal being filed by the Department of Justice (DOJ). Questioning the potential abuse of power by the White House if the president could use the National Guard for any situation he deemed warranted, Judge Breyer asked a pertinent question: Where are the limits?
Always Ready, Always There
The first official militia appeared in the United States in 1636 in Massachusetts. The Militia Acts of 1792 established state militias and decreed the conditions necessary for the president to call them out. The 1807 Insurrection Act allowed the president to use federal National Guard troops to put down insurrections, but it was balanced in 1878 by the Posse Comitatus Act.
The Act prevented federal troops from being used for domestic law enforcement, although it carved out an exemption for National Guard troops under state control. This was further tweaked by the Militia Act of 1903, also known as the Dick Act, which standardized training and protocols for the state militias and began the transformation into what the National Guard would become. It also codified when the Guard could be federalized. Every U.S. state and territory has a National Guard, as does the District of Columbia.
Most of the over 430,000 members of the modern National Guard serve part-time, with the stipulation that they can be called up by their state's governor as needed. They're often used to aid in disaster relief, safeguard elections, and bolster border security. As trained members of the military, they can also be deployed in operations abroad, as was the case in the Afghanistan conflict.
What National Guard troops cannot do is act as law enforcement officers. Military training is not the same as what police officers receive, and they don't have the authority to arrest or detain U.S. citizens unless the Insurrection Act has been invoked. While some might consider the original unrest as worthy of a response with federal troops, there's been nothing even remotely close in Los Angeles for close to three months. What are the National Guard troops there doing, and why are they still there at all?
Thanks, but No Thanks
Over the objections of Newsom and Bass, President Trump avoided the issues he faced from the Posse Comitatus Act by deploying 4000 California National Guard troops and 700 Marines under Act 10 of the U.S. Code and claiming they were needed because federal agents were being blocked from carrying out federal law. In this instance, the impediment came from unrest by Los Angeles residents over masked Immigration and Customs Enforcement (ICE) agents carrying out warrantless arrests.
While civil disorder was brief and handled by the Los Angeles police, the National Guard troops and Marines remained. Despite the administration's claims that they weren't being used for law enforcement, the troops were recorded showing up along with federal agents conducting immigration raids and executing search and arrest warrants.
While the Marines have been removed and the number of National Guard troops deployed has dropped to around 300, Judge Breyer didn't find the government's argument that the executive branch only gets to decide when there's a viable threat to be compelling. While many of Trump's executive orders have been knocked down by district judges, they've fared better in front of appeals courts.
Related Resources
- What Are Executive Orders? What Are Their Limits? (FindLaw's Law and Daily Life)
- What Is the Unitary Executive Theory? (FindLaw's Law and Daily Life)
- Rebellion and Insurrection (FindLaw's Criminal Charges)
