Use of Military to Quell Protests, Civil Disturbances

In June 2025, President Donald J. Trump sent National Guard and regular troops to Los Angeles to quell protests, some of which had been violent, that began after federal immigration agents began to arrest and deport undocumented aliens from the city.

This action, described in greater detail at the end of this essay, raised significant legal issues about a president’s use of military forces in civilian situations.  The 9th U.S. Circuit Court of Appeals ultimately upheld the president's right to deploy California's National Guard, reversing a federal district judge's decision. The cases involved examination of the constitution and the extent of a president's power.

Constitutional provisions on using military power against civilians

The U.S. Constitution embodies the principle of civilian control of the military, and, in contrast to many Central and South American republics, the United States has never had a successful military coup. Although the Federal Bureau of Investigation  handles federal crimes (many involving interstate matters), most law enforcement takes place at the state and local level, and courts have interpreted the 10th Amendment to leave most state police powers in the hands of the states. 

Article I of the Constitution vests Congress with the power to declare war, but Article II makes the president commander in chief of the armed forces. Article I, provides that “[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions,” and the Militia Acts of 1792 authorized the president to federalize state militias to this end (Roos 2025). 

Article IV, Section 4 of the Constitution, further provides that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”  

Supreme Court cases on power to use the military in state crises

In Martin v. Mott (1827), the Supreme Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons” (Nunn 2022). 

The Supreme Court decided in Luther v. Borden (1849), that the question as to whether the government of Rhode Island was republican in nature was a “political question” to be decided by the legislative and executive branches. In that case, the Supreme Court ruled that Congress had authorized the president to send troops to Rhode Island to help quell the Dorr Rebellion, if necessary, and that it would not second-guess his decision to authorize such intervention (the threat of which largely ended the matter).

First Amendment protections for peaceable protests 

The First Amendment to the Constitution provides protections for freedom of speech and press as well as for the right of peaceable assembly. 

Numerous court decisions have established that individuals have the right to peaceable protests but that governments may enact reasonable time, place and manner restrictions on public protests if such rules are designed to protect the public from violence or disorder and to protect property, both personal and governmental.  

Posse Comitatus Act 

Federal troops were assigned to the South to keep order and protect rights during Reconstruction, which lasted from 1865 to 1877. The following year, Congress adopted the Posse Comitatus Act to prevent the U.S. military from being involved in civilian law enforcement although Title 10, U.S. Code, Section 12406 has subsequently allowed the president to deploy any state’s National Guard “if the U.S. is invaded, there is a ‘rebellion or danger of rebellion’ or the president is ‘unable with the regular forces to execute the laws of the United States’”(Knauth 2025).  

Before becoming a Supreme Court Justice, William Rehnquist had advised the Office of Legal Counsel that the president had inherent powers to prevent Vietnam War protestors from obstructing or damaging federal properties (Savage 2025).  

Use of national guards to control protests — Kent State, 1970 

Governors control the national guards within their states. Although they more frequently call out the national guard in cases of domestic disasters like hurricanes, floods, tornadoes and fires, on occasion they have used them to quell civil unrest.  

On May 4, 1970, for example, Ohio Gov. James Rhodes called out 1,000 members of the Ohio National Guard to quell protests at Kent State University that had broken out in response to the escalation of the Vietnam War. The campus ROTC building had been burned. The university, fearing additional violence, banned further demonstrations, which the Guard attempted to disrupt. Guardsmen, who said they feared for their lives, fired M-1 rifles into an unarmed crowd killing four students and wounding another nine.  

The consensus appeared to be that the presence of the guard, and the canceling of all demonstrations, probably aggravated an already tense situation, and that the death of the students increased opposition to America’s continuing participation in the Vietnam War. 

Quelling protests and violence in D.C. 

Protestors often gather at the nation’s capital in Washington, D.C.  

Nationwide protests broke out there over the video-recorded killing of George Floyd, a Black man, in police custody in Minnesota, on May 25, 2020. The U.S. Park Service used tear gas to clear protestors at Lafayette Square across from the White House on June 1, 2020. President Trump subsequently crossed the street to hold up a Bible at St. John’s Church, “the church of the Presidents,” which became a prominent and controversial photo-op. Some reports indicate that the U.S. Park Police had planned to clear protestors prior to Trump’s decision to appear at the church (Gjelten, 2020).  

General Mark A Milley, the Chair of the Joint Chiefs of Staff, who had joined Trump on his walk later apologized saying, “I should not have been there. My presence in that moment and in that environment created a perception of the military involved in domestic politics” (Cooper 2020). A reporter notes that Defense Secretary Mark T. Esper “called a news conference to announce that he, too, opposed invoking the 1807 Insurrection Act to deploy active-duty troops across the country to quell protests, a line that a number of American military officials said they would not cross” (Cooper 2020).  

After Joe Biden was declared to be the winner over Donald J. Trump in the 2020 presidential election, rioters breached the U.S. Capitol Building on January 6, 2021, to stop certification of the election results.One protestor was killed and many U.S. Capitol officers were wounded, some later dying by suicide. President Trump did not call out the National Guard and was impeached (but not convicted) in part by his failure to act in a timely fashion.  

Presidents that have activated state militias, national guards 

President George Washington called on state militias to suppress the Whiskey Rebellion in Pennsylvania.  

Abraham Lincoln used this power at the beginning of the Civil War.  

Joseph Nunn with the Brennan Center for Justice observed that President John Adams used the Insurrection Act to quell Fries Rebellion in 1799, that President Ulysses Grant used it to combat the Ku Klux Klan in the 1870s, and that presidents Andrew Jackson, Rutherford B. Hayles and Grover Cleveland, used it “to intervene in labor disputes, invariably on the side of employers”  

In 1970, President Richard Nixon used National Guardsmen to deliver mail during a postal strike (Knath 2025).  

At least three presidents sent in troops during the civil rights era, sparked in part by the Supreme Court’s decision in Brown v. Board of Education (1954). After Arkansas Gov. Orval Faubus utilized the Arkansas National Guard to prevent nine African American children from integrating Central High School in Little Rock. He later withdrew them, resulting in a mob forming at the school. President Dwight D. Eisenhower heeded a request by Congressman Brooks Hays and Little Rock Mayor Woodrow Mann for help by federalizing the Arkansas guard, removing them from the governor’s control, and sending in 2,000 U.S. Army paratroopers from the 101st Airborne Division to help restore order. 

In 1963 President John F. Kennedy called on the Mississippi National Guard to help desegregate the University of Mississippi. He did the same in 1963 to integrate the University of Alabama. 

In 1965, President Lyndon B. Johnson deployed the National Guard without the support of segregationist Alabama Gov. George Wallace to protect civil rights protesters who were marching from Selma to Montgomery (Peters 2025). In 1967, Johnson further federalized thousands of Michigan guardsmen to quell a riot that began when a police arrest led to extensive violence. And in 1968 he employed federal troops in Washington, D.C., to combat the rioting that was sparked by the assassination of the Rev. Martin Luther King Jr. That same year, Delaware Gov. Charles Terry employed state guardsmen to keep order in Wilmington for a record nine months (Roos 2025). 

In 1980, President Jimmy Carter activated the U.S. Coast Guard Reserve to deal with an influx of Cuban immigrants who were part of the Mariel Boatlift. 

In 1992, President George H.W. Bush mobilized the National Guard at the request of California Gov. Pete Wilson and Los Angeles Mayor Tom Bradley after days of rioting in the wake of the televised police beating of Rodney King. By contrast, in 2006, President George W. Bush decided against nationalizing the Louisiana guard in the aftermath of Hurricane Katrina after objections from Louisiana Gov. Kathleen Blanco and doubts about the appropriateness of doing so.  

Congress subsequently adopted an appropriations rider in 2007 granting the president authority to federalize a state’s national guard during “a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident” or in response to an “insurrection, domestic violence, unlawful combination, or conspiracy,” but a year later, repealed it (Cheney and Gerstein 2025). 

Trump's response to immigration protests in Los Angeles, 2025 

President Donald J. Trump was reelected in 2024 in part on his promise to deport illegal aliens, and he stepped up such efforts in his second term. Agents from Immigration and Customs Enforcement (ICE), sometimes wearing masks, made some high-profile arrests, some targeted at college and university students who had spoken out against the War in Gaza and some taking place in judicial venues where individuals were coming to secure naturalization.

A number of raids took place in Los Angeles, California, where venues included two Home Depot stores, a donut store, and a clothing wholesaler. Los Angeles officials (like those in other “sanctuary cities” that did not want to participate in such efforts), were not informed in advance of these actions, meaning that they could not anticipate where reactive unrest might occur. As noted at the beginning of this essay, some of the resulting protests turned violent.

Although California Gov. Gavin Newsom and Los Angeles Mayor Karen Bass believed they had the situation under control through their use of local police forces, curfews, and other measures, Trump decided to send in 2,000 National Guardsmen. He later supplemented these with regular federal troops, in what critics claimed further inflamed the controversy.

Citing his view that “violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property,” Trump said that such “protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States.” He accordingly invoked 10 U.S.C. 12406 “to temporarily protect ICE and other United States Government personnel who are performing Federal Functions, including the enforcement of Federal law, and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur based on current threat assessments and planned operations.”

Democrat Governor Newsom, who appeared to relish the opportunity to raise his stature in the Democrat Party by opposing the president (Nagourney and Rosenhall 2025), subsequently filed a lawsuit claiming that Trump had no authority under Title 10 to send troops to Los Angeles without his consent and applied for an injunction against this order from the U.S. District Court for the Northern District of California.  

District Court ruling against Trump using National Guard in L.A.

On June 12, Judge Charles R. Breyer issued a decision enjoining the deployment of the California National Guard and returning it to the control of Governor Newsom. However, the judge stayed the order until the next day, before which the Ninth Circuit Court of Appeal extended the stay until it could further review the decision.

In an extensive review of the facts, Judge Breyer observed that Trump did not notify the governor of his plan to nationalize the guard, and that the governor regarded the act as a provocation intended to provoke “a spectacle” that would “only inflame the protests further.” Newsom challenged the action on the basis that it was ultra vires (beyond the president’s legal authority); that it violated the powers reserved to the states under the 10th Amendment, and that it violated the Administrative Procedures Act. 

Judge Breyer pointed out that the Military Act of 1903, embodied in Section 12406 of the U.S. Code only provided for presidential mobilization of the guard in three cases.

They involved invasion or the danger of invasion; “rebellion or danger of a rebellion against the authority of the Government of the United States,” or in cases where the president could not execute federal laws with regular forces.

Did protests amount to 'rebellion' or 'invasion'?

Although Trump questioned whether the issue was justiciable, Breyer did not think the case presented a “political question” as articulated by the Supreme Court, especially in light of “the plain language” of the code spelling out only three specific cases where the president could invoke this power. Acknowledging that the president has the power under the U.S. Code to call out guardsmen in such numbers “as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws,” Breyer pointed out that “there must first be an invasion, rebellion, or inability to execute the laws.”

Although the president has similar powers to fill vacated office, this “does not mean that the President can unilaterally and without judicial review declare that a vacancy exists in order to fill it.” Such would be “classic ipse dixit [an assertion based simply on one’s own authority].”

Emphasizing the role that judges typically play in matters of judicial interpretation, Breyer observed that in J.A.V. v. Trump, F. Supp. 3d, (S.D. Tex. May 1, 2025), another district court had held that the president could not preclude courts from ascertaining where an invasion or incursion had occurred before allowing the president to exercise power to deport Venezuelan citizens based on his conclusion that an influx of immigrants so qualified. Breyer noted that even though the AEI and the U.S. Code “both grant the President discretion in some respects, they still contained “important statutory conditions that must be met for that discretion to be exercised.”

In what could become a critical distinction in future cases, Breyer further observed that “this case is not one involving the kind of foreign policy or national security questions that traditionally are left to the President,” but instead involve “domestic use of military force.”

First Amendment right of peaceable protest must be protected

Breyer proceeded to examine the ordinary meaning of “rebellion” at the time Congress adopted the statute. He found that such definitions involved four key components. They must involve individuals who were both armed and violent, who were organized, who were “open and avowed,” and who must be seeking the overthrow of the government as a whole, often with the aim “of overthrowing the government—rather than in opposition to a single law or issue.”

Under these criteria, the Los Angeles protests fell short of such a rebellion. Breyer expressed particular concern over the thought “that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion. He cited Cohen v. California (1972) to note that “verbal cacacphony is ... not a sign of weakness but of strength,” Tinker v. Des Moines (1969) to say that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression, and Cox v. Louisiana (1965) to indicate that fear that violence might erupt is sufficient to quell First Amendment speech.

Breyer further cited a circuit court decision to show that the fact that some individuals in a protest committed violence, does not give government the right to take away the rights of speech and association to all others who participated peacefully in the protest.

Judge  doubted execution of law required military mobilization

Breyer further doubted that execution of the laws had required mobilization of the Guard. He distinguished this situation, where state and local authorities were in operation and where the state governor could have called the guard on his own, from that of the 1970 Postal Strike where mail was not being delivered until President Nixon declared a state of emergency and mobilized the Guard.

Noting that the Militia Act had required that orders issued under 12406 should be issued “through the governor of the respective State … from which State …. Such troops may be called,” Breyer observed that the president had not directly informed the governor of his actions. Indeed, the governor learned of Trump’s actions through California’s adjutant general (Breyer ruled that merely labeling the document ‘THROUGH: THE GOVERNOR OF CALIFORNIA’ was insufficient notice).

9th Circuit upholds Trump's deployment of National Guard

On June 19, 2025, a three-judge panel of the 9th U.S. Circuit Court of Appeals extended an earlier stay on Judge Breyer’s decision, utilizing a more deferential view of presidential powers under the U.S. Code and finding that Trump was acting within his authority in deploying the National Guard.

Although the 9th Circuit did not think it was precluded from reviewing this decision by the political questions doctrine, the judges put greater emphasis on the violence against federal agents who were enforcing immigration laws that had occurred in Los Angeles; on the discretion that it thought the law granted to the president in deciding whether to federalize state troops; and on the specific provision of the U.S. Code granting the president power “to execute the laws of the United States.” It particularly emphasized the decision in Martin v. Mott (1827), which had upheld President Madison’s decision to call out the Massachusetts state militia in the War of 1812.

Although the court acknowledged that the president might have consulted more closely with the state governor, it noted that by directing the order through the California Adjutant General, the president had thus issued the order “through the Governor,” even if “not directly by the Governor.” It further noted that the U.S. Code “does not give governors any veto power over the President’s federalization decision,” and that even if the law had required this, the remedy would simply have been to reroute the president’s order directly to the governor.

The court regarded predictions about whether the deployment of the Guard would increase or decrease violence as speculative and noted that that such predictions involved “whether the president should have federalized the California National Guard, not whether he had the authority to do so.”

For now, at least, presidents continue to have the power to federalize state Guards even without gubernatorial consent, although presidents will presumably be constrained by how the public reacts to such mobilizations.

John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.