Republicans Used to Care About the Tenth Amendment—Until Gavin Newsom Cited It in His Lawsuit

Take a few minutes, if you have them, to read the lawsuit filed on behalf of California Governor Gavin Newsom against the administration for its $134 million military assault on the city and people of Los Angeles. It so eviscerates all of the legal hocus-pocus that Stephen Miller, Pete Hegseth, and whoever else spoonfed the president his breakfast Jackboot Flakes this morning that even Richard Nixon comes out looking sensible. To wit:

The provision cited by President Trump for his authority to take this step? Section 12406 states that: (1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws ofthe United States.

The President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.

Abracadabra!

This is only the second time in our nation’s history that a President has relied on the exclusive authority of this provision to federalize the National Guard. The first was President Richard Nixon when he called upon the National Guard to deliver the mail during the 1970 Postal Service Strike. This is also the first time since 1965—when President Johnson sent troops to Alabama to protect civil rights demonstrators, under different federal authority—that a president has activated a State’s National Guard without a request from the State’s Governor.

Once to deliver the mail. Once to protect peaceful protesters from state and vigilante violence. And now, once to enable state and vigilante violence against peaceful protesters. One of these things is not like the other. One of these things is not the same.

Again, it is important to remember that there is neither an “invasion” nor an “insurrection” in the small slice of Los Angeles embroiled in this conflict, and it is also important to remember that no slice of Los Angeles was in conflict until the president dropped the triple-layer cake of authoritarianism on the place. ICE comes in and rousts some folks. National Guard comes in, allegedly to protect the ICE operatives. The Marines come in, allegedly to protect the National Guard. And on we go. Maybe Nixon should have given the Guard an order to deliver the mail at gunpoint. Might’ve been more fun.

Moreover, as the governor’s filing points out, this sudden deployment of the Guard comes at a time at which history and the climate tell us they might be needed elsewhere in a hurry.

The California National Guard, composed of the California Army National Guard and the California Air National Guard, has approximately 18,733 service members, with 12,212 available for deployment. Most of the California National Guard members serve as reserve forces, meaning that their role in the California National Guard is part-time, and they are generally employed in civilian roles separate from their work as service members. Many of these service members receive specialized training to perform specific duties, and all play a critical role in protecting the State.

As a recent example of the National Guard’s important work, in January 2025, the Guard was called upon to assist in fighting one of the most destructive fires in the State's history in Los Angeles County. Between January 7, 2025, when the fires started, and January 11, 2025,

This deployment comes when California is in the midst of peak wildfire season for both Northern and Southern California and may need to rely on their crucial support, as the State did during the Los Angeles fires earlier this year. 75. When the State faces simultaneous emergencies, the National Guard's resources can be stretched thin. For example, in 2020, the California National Guard was required to respond to COVID- 19, multiple wildfires at once, and civil unrest, significantly burdening the National Guard's military policing resources and making it difficult to fulfill emergent needs across the State.

Such overlapping emergencies cannot be predicted. All 4,000 of the federally deployed National Guard members are now unavailable if a natural disaster or other state-emergency erupts. These National Guard members, coming from the 79th Infantry Brigade Combat Team, include a large number of guard members who serve in Taskforce Rattlesnake, the State's specialized fire combat unit. These service members have specialized training in wildland fire mitigation and prevention and direct fire suppression, and would be highly difficult for the State to replace.

And all of that is completely illegitimate because the president’s actions are completely illegitimate.

President Trump’s Memo purporting to call into federal service members of the California National Guard under 10 U.S.C. § 12406 without issuing this order through Governor Newsom is contrary to law and outside of the authority granted to the President under that statute. Secretary Hegseth's orders purporting to federalize 4,000 members of the California National Guard without issuing these orders through Governor Newsom are contrary to law and outside of Secretary Hegseth's authority. President Trump's Memo purporting to call into federal service members of the California National Guard under 10 U.S.C. § 12406 without issuing this order through Governor Newsom is contrary to law and outside of the authority granted to the President under that statute. Secretary Hegseth's orders purporting to federalize 4,000 members of the California National Guard without issuing these orders through Governor Newsom are contrary to law and outside of Secretary Hegseth's authority.

The statute authorizes the federalization of the National Guard to (1) repel invasion of the United States by a foreign nation, (2) suppress a rebellion or danger of rebellion against the authority of the Government of the United States; or (3) execute federal laws when the President is unable to do so with the regular 21 forces. 10 U.S.C. § 12406. The Trump Memo does not (and cannot) assert that California is being invaded or is in danger of invasion by a foreign power. Nor has the Trump Administration identified a “rebellion,” which is generally understood to connote “an organized attempt to change the 25 government or leader of a country, [usually] through violence,” something much beyond mere protest or sporadic acts of disobedience and violence.

The filing also claims that the president’s actions violate the Tenth Amendment, something that used to be a big honking deal for conservatives. Senator Mike Lee of Utah made his whole career as a konztitooshunal skolar being what they used to call a “Tenther.” Times change.