Lawfare as Incitement: How Judges Are Fanning Flames Against Trump

Understanding Presidential Authority to Call the National Guard: What the Constitution Says About Trump’s Powers

As Gavin Newsom works to undermine President Trump at every turn, questions have arisen about whether Trump has the authority to call out the National Guard without explicit congressional approval or a formal declaration of insurrection. Understanding the constitutional and legal framework clarifies these issues and sheds light on the President's powers in emergencies.

Presidential Power to Call the National Guard

The U.S. Constitution provides clear guidance on the President’s role as Commander in Chief. Article II, Section 2 states:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

This means when the National Guard is federalized — called into actual service by the federal government — the President has direct command authority over those forces.

Congressional Role and the Insurrection Act

Article I, Section 8 grants Congress the power to call forth the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Based on this, Congress passed laws such as the Insurrection Act of 1807, which authorizes the President to deploy military forces, including the National Guard, to respond to civil unrest, insurrections, or rebellion without needing new congressional approval each time.

The Insurrection Act allows the President to act if:

• There is unlawful obstruction of federal laws,

• There is an insurrection or rebellion hindering law enforcement,

• Or states are unable or unwilling to enforce federal law.

Importantly, there is no legal requirement for the President to formally declare an “insurrection.” The President’s reasonable determination that conditions warrant federal intervention is sufficient. When this happens, the President must notify Congress promptly.

As rioters were immediately throwing rocks at ICE officers in Los Angeles on day one of the so-called "peaceful protests," the president can cite obstruction of law enforcement in calling the National Guard.

The Debate: Democrats’ Arguments vs. Constitutional Reality

Some Democrats argue that governors control the National Guard and that Presidents need either congressional approval or state consent to deploy troops domestically. They also cite concerns about potential abuse of power and interpret laws like the Posse Comitatus Act as limiting such presidential authority.

However, these arguments overlook key legal realities:

• The Constitution explicitly makes the President Commander in Chief of the federalized National Guard.

• Congress has already authorized this power through laws like the Insurrection Act.

• The Posse Comitatus Act restricts active-duty military from domestic law enforcement but exempts National Guard under federal orders.

• Historically, Presidents have exercised this authority without requiring new congressional approval or state consent during emergencies.

The judge who just declared Trump’s mobilization of the California National Guard “illegal” probably knows all this. However, the important thing was to get anti-Trump protestors worked up for the No Kings protests on June 14th. This is undoubtedly why the judge likened Trump to "King George" in his court order, which is likely to get overturned. The judge was milking optics.

Harvard Law professor Adrian Vermeule writes on X:

If your reaction to this is that “the process is working,” you’re missing the point. Any one of almost 700 district judges might intervene at any time to block anything the President does, even within the core of his Article II powers. The overhang of uncertainty and confusion about where power lies in our government is toxic in itself.

https://x.com/Vermeullarmine/status/1933366232926884160

The point is not to win these cases on appeal. The point is to paint a narrative that Trump is overstepping his bounds, to make Trump out to be a “dictator.” The purpose is to foment hysteria among the left.

This incitement to violence has already resulted in violent protests against ICE. We will see what comes of the No Kings protests tomorrow. Reports are circulating that leftists are planning to dress up as fake MAGAs to create chaos tomorrow. Iran has also promised to punish the United States for Israel's attack. This weekend will be a powderkeg. Activists judges are throwing fuel on the fire.