Trump could upend the very structure of American government

If he gets away with using the National Guard in Los Angeles, the very basis of our constitutional order would be damaged.

(KNBC LA Channel 4 screengrab)

Writing in 2011, former Supreme Court Justice Anthony Kennedy said, “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.“ This simple insight offers a key vantage point for understanding the threat that President Donald Trump’s unwarranted deployment of the California National Guard and the U.S. Marines in Los Angeles poses not just to the rights of protesters but also to the very structure of American government.

Last week, Federal District Judge Charles R. Breyer highlighted that threat in an important decision returning control of the guard to California Gov. Gavin Newsom. On Tuesday, the Ninth Circuit Court of Appeals will hear from the Trump administration seeking to overturn Breyer’s decision.

The Ninth Circuit should uphold what Breyer did and resist the president’s assault on the Constitution. Whatever happens on that appeal, the importance of Breyer’s discussion of America’s federal system will be undiminished.

Along the way, Breyer determined that the president’s actions “were illegal—both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution.”

The Tenth Amendment? It is one of the least discussed but most important provisions of the Bill of Rights, a key to James Madison’s vision of limited government.

Recall the language of that amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As an article from the Ronald Regan Presidential Library explains, the Tenth Amendment, ratified in 1791, “makes clear that any powers that are not specifically given to the federal government, nor withheld from the states, are reserved to those respective states, or to the people at large.”

The amendment reflected the worry of the people and their representatives that the federal government might, if not hemmed in, become too powerful, especially if the president acted like a king. What would they think now?

Joseph Story, a famous 19th-century commentator on the Constitution, called the Tenth Amendment “a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution. Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.…”

“It is plain,” Story contended, “that … its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted…. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved.”

Then, in words that have particular resonance today, Story added, “Let us never forget that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders.”

One of the key powers left to the states in our constitutional design is the so-called police power. More than 70 years ago, the Supreme Court said that “[p]ublic safety, public health, morality, peace and quiet, law and order ... are some of the more conspicuous examples of the traditional application of the police power.”

Preserving public safety is the justification administration officials are now using to explain why Trump “activated National Guard troops without a governor's consent, a significant break from long-standing protocol.”

In an interview with NPR, Department of Homeland Security Assistant Secretary for Public Affairs Tricia McLaughlin explained that the president wanted “more boots on the ground. It's more men and women in uniform making sure that law enforcement is safe, our federal property is safe, and that those protesters are safe as well. Right now, we've seen from the leadership of Governor Newsom and Karen Bass that things have not been peaceful, they have not been smooth, and so that's something – we wanted to return law and order.”

The president himself offers a public safety justification. He claims Los Angeles is being "invaded and occupied by illegal aliens and criminals” and that, if he had not acted, “Los Angeles would have been completely obliterated."

In his June 7 memo federalizing the National Guard in California, the president said that ”to the extent that 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.” Add to that Trump’s assertion that Newsom is “grossly incompetent,” and you get the basis of the administration’s action.

However, Breyer was not persuaded by any of that, seeing it as a pretext for an assault on the federal system itself. He labelled the president’s action “’a serious breach of state sovereignty.’”

The judge treated the president’s use of the term “rebellion” to describe what was and is happening in Los Angeles as unserious in the extreme. Actions constituting a rebellion, he explained, must be “violent” and “armed.” They must be “organized,” and a rebellion must be “open and avowed.”

Finally, “a rebellion must be against the government as a whole—often with the aim of overthrowing the government—rather than in opposition to a single law or issue.”

As Breyer summarized the situation on the ground, “The protests in Los Angeles fall far short of ‘rebellion’.” Moreover, he warned, “The idea that protesters can so quickly cross the line between protected speech and ‘rebellion against the authority of the Government of the United States’ is untenable and dangerous.”

And, on the Tenth Amendment question, Breyer noted that the police power “is traditionally reserved to the states” by that provision of the Bill of Rights. He added that the president’s action would prevent the governor of California from using the National Guard from using them for legitimate purposes.

Breyer also chided the Trump administration for usurping the state’s police power just because it was “dissatisfied with how vigorously or quickly the state is enforcing its own laws.”

There is nothing universally good about federalism, and history teaches that it can be used for evil purposes as well as noble ones.

But it is basic to our constitutional system.

And today, it is more important than ever. “Federalism,” as Jeffrey Rosen observes, “remains the most robust and vibrant Madisonian cooling mechanism.”

The power of blue state governors poses a key barrier to Trump’s accumulation of power. That’s why what Breyer did, and what the Ninth Circuit will do, is so important.

If Trump can get away with circumventing the Tenth Amendment, the president will move closer to having what Justice Kennedy called “complete jurisdiction over all the concerns of public life.” Kennedy is right to remind us that “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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