Hawa Allan is author of “Insurrection: Rebellion, Civil Rights, and the Paradoxical State of Black Citizenship.”
Though the specter of the 1992 riots in Los Angeles looms over the Trump administration’s escalating military deployment to the city, the current federal response is a radical departure from the 1992 action. Unlike in 1992, the current military deployment has been ordered over the objection of the state governor and the city’s mayor — thereby heralding a battle that has flipped the age-old connotation of states’ rights on its head.
In 1992, President George H.W. Bush federalized the National Guard upon the request of then-California governor Pete Wilson to quell citywide riots following the acquittal of four white police officers who had brutally beaten Black motorist Rodney King. The state’s current governor, Gavin Newsom, did not request federal military intervention in response to clashes between LA protesters and law enforcement over ongoing Immigration and Customs Enforcement raids. Newsom has described the federal intervention as “purposefully inflammatory” and has taken legal action to resist it.
For now, the Trump administration’s military deployment is authorized under a section within Title 10 of the US Code that allows the president to federalize the National Guard to help execute federal law in specified instances — namely, to repel invasion or suppress rebellion. However the text of the statute states that any orders for such federalized troops are to be issued through a state’s governor. Newsom’s objection to Trump’s move, then, is grounded in principle — rebuffing Trump’s challenge to his authority by reasserting state sovereignty and the division of power between state and federal government.
Going forward, however, the Trump administration is considering invoking the Insurrection Act of 1807, which authorizes the president to deploy federal troops inside the United States to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” that deprives people of their constitutional rights or obstructs the execution of federal law. Importantly, however, any federal troops deployed under the Insurrection Act would take orders directly from the executive branch, thus overriding state control of military intervention.
Bush invoked the Insurrection Act in 1992, but again, he did so upon the request of the California governor. While the Insurrection Act has been sparingly invoked, Bush’s move was consistent with prior applications in similar contexts. When state governors have requested federal military intervention under the act, they have consistently done so amid inflamed racial tensions that erupted into violent civil unrest. Such instances include the clash in the 1850s between pro- and anti-slavery forces known as Bleeding Kansas, Chinese expulsion campaigns by white mobs in Washington in the 1880s, the Detroit riots of 1943 and 1967, and the riots in Baltimore, Chicago, and Washington, D.C., following Martin Luther King Jr.’s assassination.
If Trump invokes the act now, he would probably do so unilaterally — in a move that, at least since the turn of the 20th century, would depart from unilateral invocations by past US presidents. In the limited instances when past presidents have invoked the act unilaterally and deployed federal troops over the objection of the state governor, they have done so to enforce the constitutional rights of citizens that were being violated by the state governors themselves — all of whom weaponized states’ rights to preserve the Southern “way of life,” a euphemism for resisting federally mandated desegregation.
Not incidentally, examples of the use of the Insurrection Act involve federal military enforcement of the civil rights of Black Americans, such as the First Amendment right of civil rights protesters to march from Selma to Montgomery following the brutal assault by Alabama state troopers on marchers known as Bloody Sunday. The Insurrection Act was also applied to enforce the desegregation of public schools in Arkansas, Mississippi, and Alabama — highlighted, respectively, by the military escort of the Little Rock Nine into Central High School, the showdown between federal troops and white segregationists at the University of Mississippi, and the National Guard’s deployment in response to Governor George Wallace’s stand in the University of Alabama’s schoolhouse door, where he was physically blocking two Black students from enrolling.
When past presidents took such unilateral action, they did so hesitantly, as they were sensitive to the public perception of overstepping federal power and encroaching upon state authority. Before eventually deploying federal troops to Little Rock to quell mob violence, President Dwight D. Eisenhower first held a meeting with Governor Orval Faubus of Arkansas to try to convince him to withdraw the National Guard troops he had deployed to block the entry of Black students into the high school. In a bid to avoid federal intervention, President John F. Kennedy went as far as to suggest to Governor Ross Barnett of Mississippi that he help stage a scenario where Black student James Meredith would “secretly” enroll in the University of Mississippi and allow the governor to save face before his white segregationist base; Kennedy only invoked the act to enforce Meredith’s enrollment when Barnett reneged on this plan.
In 1965, President Lyndon B. Johnson had communicated his strong preference for Wallace to assume his own authority over the Alabama state National Guard to protect protesters marching from Selma to Montgomery, but Wallace refused. When Johnson ultimately invoked the Insurrection Act, he issued a press statement insisting that it “is not a welcome duty for the federal government to ever assume a state government’s own responsibility for assuring the protection of citizens in the exercise of their constitutional rights.”
By contrast, the Trump administration is displaying a propensity to flout state authority and boost federal military power — a situation that is especially remarkable given that belief in minimal federal interference in state affairs is supposed to be one of the hallmarks of conservative politics.
In January 2017, during his first administration, Trump threatened to “send in the Feds” to Chicago in response to escalating gun violence in the city. Trump also threatened to invoke the Insurrection Act in response to protests that erupted in cities nationwide after then-Minneapolis police officer Derek Chauvin killed George Floyd — a move that was opposed by several Democratic governors at the time.
Although Trump eventually stood down from his threatened invocation of the act in 2020, the administration’s recent threats, together with ICE raids, are ushering in a new era of conflict with states’ rights.
Democratic state governors now seek to protect the civil rights of citizens and noncitizens alike from Trump’s exercise of federal power to “Make America Great Again.”
Newsom, in his attempts to shield the “sanctuary city” of Los Angeles by asserting states’ rights, is ironically echoing defiant Southern Democrat predecessors who were determined to resist the military occupation of their state. Meanwhile, the Trump administration — in its moves to reinforce the authority of federal ICE agents to conduct raids on unsuspecting residents with dubious cause and without due process — is wielding federal power to reassert Trump’s own power instead of enforcing constitutional rights.