You broke the law…

What did you think would happen?

A few months back I wrote a piece arguing that the Trump administration’s position on due process regarding deportation is dangerous. I point this out to make it clear that I am not some Trump acolyte defending everything he does. I believe in the law. Most people do I think. We might disagree with some, but the fact that a democratically elected government has written them means that they have been created using a process that gives us some input. We cannot claim that our laws are being imposed on us by some authoritarian rulers in some arbitrary way. As such, whether we like them or not, we are required to obey them. If we don’t, then we should not be surprised when we face fines or imprisonment. Or in the case of people who have entered the country illegally, arrest and deportation.

The simple statement that people entering and/or living in the US illegally should expect to face penalties if discovered should be a simple statement of fact. Break the law, face the consequences. The fact that the Democratic Party does not agree with what is at it’s foundation common sense is the root of the problem. However, the problems the Democrats have with the concept of law and order are not the subject of this article. The subject is Trump’s mobilization of the National Guard. Before we get into the legality of this move though we need to understand what has brought us to this point.

A Brief Chronology of Events

• June 6–7, 2025 – ICE conducts raids, protestors respond

  • U.S. Immigration and Customs Enforcement (ICE) conducted raids across Los Angeles, Paramount, and Compton—arresting around 118 individuals for immigration violations NBC News

  • In Paramount and Compton, local protests erupted: demonstrators blocked Border Patrol vehicles and hurled rocks, leading authorities to respond with tear gas, flash‑bangs, and pepper balls. Local News The Jerusalem Post

• Saturday evening, June 7 – Trump moves to federalize Guard
  Citing “incidents of violence and disorder” against federal agents during the ICE actions, President Trump issued a presidential memorandum, using Title 10 of U.S. Code, to federalize roughly 2,000 members of the California National Guard, overriding state authority without a governor’s request CalMatters

• Early morning, Sunday June 8 – Troops arrive & protests continue
  About 300 Guard troops reached downtown LA Sunday morning, guarding federal buildings. Clashes soon resumed: law enforcement, including federal agents, LAPD, and the Guard, used tear gas and riot gear to disperse protesters Local News

What’s Is Everyone Saying?

Excellent question.

Well we could get into a detailed analysis of the comments made by politicians but by now most of us know that’s a waste of time as they’re all very predictable. Prominent Democrats, including Bernie Sanders, have accused Trump of authoritarian overreach and undermining constitutional norms. Not surprisingly, Republicans have blamed the situation on state sanctuary policies and criticized Newsom for hindering ICE operations. And of course there is the usually reasoned take from the left that this is the rise of fascism and the end of America as we know it.

In some ways this reminds me the Canadian government’s illegal use of the country’s Emergencies Act to break up trucker protests that had disrupted the capital city of Ottawa back in 2022. To be fair, Trudeau used 1000 extra police officers to quell the protests not the national guard. Of course Canada does not have a national guard, and given his use of “financial incapacitation” measures on protestors, it’s not unreasonable to assume he would have mobilized the national guard had it existed. There is one other important difference between Trudeau’s and Trump’s responses, the Canadian government was putting down a peaceful protest while Trump is responding to violent protests. The Left won’t see it that way of course but then when you call rioting “mostly peaceful” you’ve set an almost impossibly high bar for what would constitute violence.

The Rise of Fascism and the End of America

Sure that’s one way to look at it. You could also argue that California’s refusal to enforce immigration law will lead to anarchy. Neither view is particularly rational. I’ll be honest, I worry about Trump’s authoritarian tendencies, but I have a much simpler, and unfortunately for the demogogues out there, less alarmist explanation for the why Trump, Newsom, et. al. are doing what they’re doing.

It’s Just Politics

Let’s look at this logically and at Newsom’s and Trump’s circumstances individually. Let’s start with Newsom.

What are you thinking Governor?

Is it really so hard to enforce the law? Despite his progressive credentials and lip service to “defund the police,” laws are enforced in California all the time. Sometimes even against criminals. Immigration law is pretty clear, under 8 U.S. Code § 1325, entering the US at a place not designated by immigration officers (i.e., crossing the border between ports of entry) is punishable by up to 6 months in jail and/or fines. This jumps to 2 years in prison for repeat offences. So why is California opposed to detaining and deporting people who have broken the law? It’s quite simple really, it’s bad politics in California to crack down on illegal immigrants.

It's difficult to get exact numbers but it is estimated that there are between 1.8 to 2.6 million illegal immigrants in California today. While they are not permitted to vote (yet), many have relatives that can. Again, precise percentages are not available but findings suggest that a majority, potentially 60-80%, of undocumented immigrants in California likely have family members in the state. That’s a lot of votes. Polls also send a message to Newsom that supporting deportation would be bad politically. Public opinion in California leans toward supporting undocumented immigrants, with 72% of adults viewing them as beneficial and 73% favoring legal pathways to stay, per a 2025 PPIC survey.

Politically speaking, deportations are a losing issue in California. So what is Trump up to?

The People have spoken!

Well, not really. The opinions of one state are just that, the opinions of one state. Put another way, Trump is the President of the United States, not California. What does the rest of the country think?

Views are mixed (aren’t they always?):

• Gallup (June 2024): 55% of Americans want immigration levels decreased, a significant rise from 41% in 2020, with only 16% favoring an increase and 25% wanting levels kept the same.

• Pew Research Center (March 2025): 51% of U.S. adults believe some undocumented immigrants should be deported, particularly those with criminal records (97% support deporting those convicted of violent crimes), while 32% support deporting all undocumented immigrants, and 16% oppose any deportations.

Trump was elected in part by promising to deal with illegal immigration and “fix the border.” Since he would have little concern for the opinions of Democrats (sorry, I’m just being realistic) we need to understand how support for these issues breaks down by party:

• Pew Research Center (March 2025): 54% of Republicans support deporting all undocumented immigrants, compared to just 10% of Democrats. Conversely, 75% of Democrats say the Trump administration’s deportation efforts go too far, while 81% of Republicans support law enforcement checking immigration status during routine activities.

• Monmouth University (February 2024): 61% of Americans see illegal immigration as a “very serious” problem, up from 43-49% during 2015-2019. Support for a border wall has risen to 53%, with Republicans (86%) and Independents (58%) driving the increase, while Democrats (17%) remain opposed.

When evaluating Trump’s actions we should also remember his campaign promises. Trump was elected in 2024 with illegal immigration as a core promise, leveraging voter concerns about border security and economic impacts. Polls show immigration was a top issue for many voters (11-16%), particularly his base, with 55% of Americans favoring reduced immigration and 51% supporting some deportations. His promises of mass deportations, border wall expansion, and ending policies like birthright citizenship resonated strongly with Republicans and swing voters.

Where does that leave us?

As previously stated, politics explains everything we’re seeing. Nationally the partisan gap is wide, with Republicans (54%) far more likely to support mass deportation than Democrats (10%) (Pew 2025). In California, however, even Republicans are less restrictive, with only 30% viewing immigrants as a burden (PPIC). This all adds up to Newsom’s political fortunes being tied to ignoring illegal immigration while Trump (and the Republican Party) must show that he is dealing with the it.

Ok, that explains why they’re behaving the way they are, but…

Is mobilizing the Guard legal?

Trump based his actions on Title 10, Section 12406, which permits federal activation of the National Guard when there’s an “invasion,” “rebellion,” or inability to enforce federal laws. I’m tempted to ask “is it wise,” but we’ll know that answer once everything plays out and we see who gains the most politically. The question we are concerned with is “is it legal?” This should…should…be easier to answer. We can start by ignoring the politicians. As I said before, we know what their opinions will be just by looking at their party affiliation. The best place to start is instead with the constitutional scholars. Yes, they will likely lean left politically, but I’ve spent a considerable amount of time defending the Supreme Court and it leans right. I’m not about to argue that one group can set aside it’s political biases and act professionally and the other can’t so I’m going to grant same consideration to other legal experts that I give the Supreme Court.

Unfortunately for Trump, no significant mainstream constitutional or legal experts have publicly supported Trump's federalization of the California National Guard without the governor's consent. Comments include:

• Elizabeth Goitein (Senior Director at the Brennan Center’s Liberty & National Security Program) - “completely unprecedented under any legal authority.”

• Hina Shamsi (Director, ACLU National Security Project) - “unnecessary, inflammatory, and an abuse of power.”

• Laura Dickinson (Professor at George Washington University Law School) - the broader statutory interpretation “appears breathtakingly broad” and could permit “unchecked power to deploy troops without state consent.”

Much of the pushback stems from the legal ambiguity of the wording of Title 10 §12406. It allows the president to federalize a state's Guard if there's a rebellion or obstruction of federal law and it is unclear if large-scale protests rise to that threshold.

Conclusion

Trump certainly appears to be in the wrong here. This is not to say that Newsom has been right in his approach either or that California’s approach to illegal immigration isn’t questionable. The contested legality of sanctuary cities, which limit or prevent cooperation with federal immigration enforcement, should be viewed as a major factor in this clash, as should the state’s approach to enforcing immigration law. When the Governor claims that California doesn’t need federal assistance enforcing the law, one is tempted to add “because we have no intention of enforcing it at all.” Trump’s questionable and likely unconstitutional deployment of the National Guard is the fault of both major players in this sad affair, Trump for overreacting and Newsom for creating a situation that permitted Trump to overreact.

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