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What President Trump Could Do If Jerry Brown Rejects California National Guard Deployment To Border

Anthony Albright / Flickr

U.S.-Mexico Border in Jacumba Hot Springs, California.

Anthony Albright / Flickr

We’re still waiting for word from Gov. Jerry Brown about whether he’ll agree to President Trump’s request to deploy California National Guard troops to the Mexican border.

There’s broad agreement among legal scholars that a governor can reject a president’s request to deploy that state’s National Guard under the section of federal law Trump cites in his proclamation.

What would Trump's options be if Brown says no?

“He’d have two options,“ says USC law professor Dwight Stirling, who’s served as a military lawyer in the California National Guard and written a legal analysis about states’ powers over National Guard deployments. “Both are draconian and severe, and they’re options I’ve never seen done before.”

Stirling says Trump could cut the California National Guard’s federal funding – or end its federal recognition, meaning California guard members could no longer be part of the U.S. military.

“Now what could also occur here,“ he adds, “is the president could put the California National Guard under his control.”

That’s known as federalizing the Guard, under a different part of U.S. law.

But then, under a post-Civil War law called the Posse Comitatus Act, guard members wouldn’t be allowed to enforce domestic laws the way the Border Patrol can.

That means guard members could not arrest, search or seize people or goods entering America from Mexico – which is what Trump's critics fear the troops would be asked to do.

Ben Adler

Capitol Bureau Chief

Capitol Bureau Chief Ben Adler first became a public radio listener in the car on his way to preschool – though not necessarily by choice. Now, he leads Capital Public Radio’s state Capitol coverage, which airs on NPR stations across California.  Read Full Bio 

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