by Ryan McMaken, Mises Institute
Donald Trump and California Governor Jerry Brown have failed to come to an agreement over how California National Guard troops should be used at the US-Mexico border. Gov. Brown has agreed to send California troops, but has stated he will not allow them to function in an “immigration enforcement” role.
Trump had earlier lauded Brown for sending some California Guard troops, but, it seems that in Brown’s mind, the troops ought to be there only for activities related to drug trafficking and organized crime. Trump then expressed his displeasure with these state-imposed limitations.
The Drudge Report in recent days has played up the conflict between state and federal governments with headlines like “DEFIANT: California deploying 400 troops — but not for immigration enforcement…” and BORDER BATTLE.”
Other publications, like the UK’s Daily Mail report with some degree of surprise over the fact that a governor of a state would refuse to send troops where requested by the US president.
Legally speaking, it’s all much ado about nothing. So long as the president does not federalize National Guard troops for the purposes of a “national emergency,” a state governor, who is the Commander in Chief of the state’s National Guard troops, can refuse to send personnel as requested.
Presidents can, of course, federalize the National Guard and involuntarily deploy them if he wishes, but Trump has not done that — and doing so remains a sensitive political issue when the president intends to use the troops on American soil.
In the case of using National Guard troops on the US side of the US-Mexico border, of course, the President could run up against the Posse Comitatus Act which prohibits using federalized US troops within the United States itself.
As explained by Tim Macarthur, not even that prohibition is a hard and fast rule, but sending federalized US troops to the border would potentially invite legal challenges and political resistance.
1986: When Governors Refused to Send Troops to Latin America
Politically, of course, it’s not shocking that the other border states — Arizona, New Mexico, and Texas — all of which have Republican governors, have all voluntarily sent troops, apparently without limitations imposed by the governors in question.
Jerry Brown, a Democrat, meanwhile, has taken a different approach.
This is not the first time, however, that a state governor has offered resistance to deployment requests or orders from presidents.
During the 1980s, when President Reagan