Fordham Law Professor Thomas Lee, who previously served as special counsel in the U.S. Department of Defense, clarifies in a FactCheck.org article written by Saranac Hale Spencer and D’Angelo Gore which sections of federal law have been used by U.S. presidents in recent years.
Does Trump have authority to send troops to LA?
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In his June 7 memo, Trump had cited a section of federal law — Title 10 of the U.S. Code, section 12406 — that describes three instances in which the president can federalize National Guard troops, the two that he referenced and also when the U.S. is being invaded.
The last time that section of law was used was in 1970, when then President Richard Nixon invoked it to use the National Guard during a mail strike, as explained in a recent article by William Banks, a professor at Syracuse University College of Law, and Mark P. Nevitt, an associate professor at Emory University School of Law.
This section of law wasn’t used in 2020, in response to protests in Washington, D.C., following the killing of George Floyd. “It was discussed,” Thomas Lee, a professor at Fordham Law who served as special counsel in the Department of Defense at the time, told us in an interview. Instead, the department used a different law — Title 32 of the U.S. Code, section 502(f) — to bring unfederalized National Guard troops from other states to D.C.
Read “Q&A on Federalizing the National Guard in Los Angeles” on FactCheck.org.