Mobilizing Law as a Pretext for Amassing Power: LA as a Test Case of Autocratic Legalism

Rule by emergency decree is a cornerstone principle of contemporary autocracy. Hungary’s populist Fidesz party, led by Viktor Orbán, famously issued more than 150 emergency orders and governed consistently under some form of emergency power from COVID-19 till its recent defeat (Stone Reference Stone2023). Other authoritarian leaders have similar records. Emergency power is invoked in moments of crisis—natural disasters, economic catastrophes, and public health emergencies—often with statutory or constitutional underpinning. Trump has invoked the idea of emergency across multiple domains, using it to justify massive tariffs, rescind environmental protections, and threaten the federalization of elections. War or war-like emergencies present the widest ambit for executive power to suspend normal legal constraints (Szente Reference Szente2024).

It is for this reason that the administration has advanced an “invasion” logic, first utilized to justify the deportation of Venezuelan immigrants claimed to be narco-terrorists, to build a legal bridge to justify the mobilization of military personnel to enforce immigration law and crack down on immigration-related protests in Los Angeles and other progressive cities. The legal foundation for this bridge was set on Trump’s first day, when he issued Executive Order 14167, “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” Affirming that the “Armed Forces of the United States have played a long and well-established role in securing our borders against threats of invasion,” the order directed ongoing military involvement because a “National Emergency currently exists along the southern border of the United States.” The president ordered the Secretary of Defense to deliver a plan “to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion, including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.” This order was followed nine days later by Proclamation 10886, which doubled down on the inverted reality of harmful invasion needed to justify emergency power:

To protect against this “invasion”—a term that bundled together a wide range of activity, including gang violence, drug smuggling, and terrorism—the proclamation declared an emergency at the southern border under the National Emergencies Act, instructing the Secretary of Defense to “order as many units or members of the Armed Forces … as the Secretary of Defense determines to be appropriate … in obtaining complete operational control of the southern border of the United States” (Proclamation 10886). The proclamation further instructed the Secretaries of Defense and DHS to report within ninety days “whether to invoke the Insurrection Act of 1807,” which permits a president to call up state militia and use regular armed forces “as he considers necessary to enforce” federal laws or “suppress” a “rebellion against the authority of the United States” (ibid., 8328). Although the proclamation was aimed at border security, the reference to the Insurrection Act suggested the broader idea that immigration and immigration-related protest could constitute a form of rebellion, establishing a legal bridge between border enforcement and domestic policing. In April, Pentagon lawyers recommended against using the Insurrection Act in domestic immigration enforcement, although the president continued to publicly float the idea, which he originally considered to put down protests over the police killing of George Floyd and to stay in office after the 2020 election (Bertrand et al. Reference Bertrand, Britzky, Tapper and Alvarez2025).

This legal authorization formed the backdrop of ICE raids that began immediately after Trump’s inauguration, leading to over 500 detentions in several major cities by the end of January. In March, DHS announced that it had arrested individuals during a three-day enforcement action in San Diego, which included a workplace raid at a federal contractor. In May, ICE began ramping up raids, resulting in arrests at a worksite in Washington state, a construction site in Alabama, and a nightclub in Los Angeles, along with individual arrests during routine immigration check-ins, airport entries, and traffic stops. On May 31, masked ICE agents targeted two Italian restaurants in San Diego, using flashbang grenades to disperse a gathering crowd as they arrested four workers (Rios Reference Rios2025).

These actions augured a dramatic escalation in Los Angeles, which Trump had repeatedly criticized for its sanctuary policy, which he linked to out-of-control crime without evidence. The very immigrant-dense industries and worksites that formed the basis for organizing and mobilization by labor groups—like garment shops, street vendors, and day labor sites—became the zones of ICE enforcement. On June 6, DHS launched military-style raids by ICE agents across the city, targeting a downtown garment warehouse and Home Depot sites in Westlake, resulting in forty-four arrests, which included SEIU President Alex Huerta for alleged interference while documenting a downtown raid (Huamani et al. Reference Huamani, Harter, Uranga, Ellis and Vines2025). Protesters clashed with agents in multiple locations, including at clothing wholesaler Ambiance Apparel, where protesters attempted to block agents from entering the building, provoking a pepper spray response (ibid.). About 200 protesters assembled at the downtown Metropolitan Detention Center, where migrants were believed to be held. Although the small protest was largely peaceful, there were reports of clashes with agents and vandalism. That evening, about 800 protesters marched downtown, where some threw “concrete chunks, bottles of liquid, and other objects” at federal officers (TRO Order June 12, 2025). The LA Police Department (LAPD) declared the protest an unlawful assembly around 7:00 pm. LAPD officers were brought in soon after, using tear gas and flashbang grenades to disperse the crowd, which was cleared by midnight (ibid., at 4).

The next day, US Senators Adam Schiff and Alex Padilla demanded an investigation: “This troubling incident is not an isolated case. Rather, it appears to be part of a broader pattern of escalated and theatrical immigration enforcement operations across the country” (Huamani et al. Reference Huamani, Harter, Uranga, Ellis and Vines2025). While protests at the detention facility continued, LAPD reported that they were “fairly in control” and dispersed by the early morning (TRO Order at 4, June 12, 2025). Protesters also gathered in Compton and at a Paramount Home Depot, where the LAPD declared an unlawful assembly and used tear gas to disperse approximately 100 protesters gathered at a major freeway intersection (Newsom Original Motion at 8). While “[s]ome protesters threw rocks and other objects (including a Molotov cocktail), burned a vehicle, looted a gas station, and vandalized property,” “[l]ocal law enforcement brought the situation under control by 4:00 a.m. and [the LA Sheriff’s Department] was able to demobilize its teams,” arresting 11 people (TRO Order at 4). That afternoon, after US Border Czar Tom Homan stated, “We are going to bring the National Guard in tonight,” Governor Newsom posted that “there is currently no unmet need” with respect to law enforcement and that federal troop deployment would “only escalate tensions” and “erode public trust” (Newsom Motion at 9–10).

Nevertheless, on the evening of June 7, President Trump issued an executive memo invoking another infrequently used wartime authority containing invasion and rebellion language, the National Guard in Federal Service Act, which allows a president to federalize the state-based National Guard (10 U.S.C. § 12406). This law, like the Insurrection Act, is significant because it permits a president to override the general proscription on deploying the military for domestic law enforcement. This proscription is codified in the Posse Comitatus Act of 1878, which criminalizes the willful use of the military as a “posse comitatus or otherwise to execute the laws” without express authorization “by the Constitution or Act of Congress” (18 U.S.C. § 1385). Section 12406 of the National Guard in Federal Service Act constitutes express congressional authorization for the federalization and mobilization of the National Guard as the president “considers necessary to” respond to one of three factual predicates: (1) the United States “is invaded or is in danger of invasion by a foreign nation;” (2) “there is a rebellion or danger of rebellion against the authority of the Government;” or (3) “the President is unable with the regular forces to execute the laws of the United States.” Unlike the Insurrection Act, which authorizes the president to act unilaterally, § 12406 requires orders to be made “through the governors of the States.”

Trump’s June 7 Memo, titled “Department of Defense Security for the Protection of DHS Functions,” did not refer to Los Angeles by name, though it clearly had the city in mind in stating “[n]umerous incidents of violence and disorder have recently occurred and threaten to continue in response to the enforcement of Federal Law by” ICE (Memo June 7). The intent of the memo was to leverage the sporadic incidents of violence, provoked by the administration’s deliberately aggressive military tactics, into a military-level crisis justifying National Guard deployment.

Toward this end, the memo precisely parroted provisions of the statute: “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” (ibid.) On that basis, the president directed National Guard troops “to temporarily protect ICE and other United States Government personnel who are performing Federal functions … and to protect Federal property, at locations where protests against these functions are occurring or are likely to occur.” The memo specifically asked for “at least 2,000 National Guard personnel” for at least sixty days, while giving the Defense Secretary discretion to “employ any other members of the regular Armed Forces as necessary.” Marching in lockstep, Secretary Pete Hegseth issued an order that evening calling 4000 members of the California National Guard into service, along with 700 Marines (Order Granting Plaintiff’s Application for Temporary Restraining Order, Newsom v. Trump, June 12, 2025). Troops began arriving the following day. The last time the National Guard had been federalized in California was during the 1992 Rodney King unrest—with the consent of Governor Pete Wilson (Newsom Motion at 7).

By contrast, the June 7 federalization order was made directly to the California official in charge of the state’s Guard troops, bypassing Governor Gavin Newsom—marking the first time a governor had been bypassed since 1965, when President Lyndon Johnson used National Guard troops in Alabama to protect civil rights protesters from local authorities (Megerian and Price Reference Megerian and Price2025). The Trump order turned this precedent on its head: federalizing the Guard against the protesters. On June 9, Newsom sued to block the deployment, asserting that “President Trump has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority … [using] a protest that local authorities had under control to make another unprecedented power grab” (Newsom v. Trump Complaint at 2). The next day, in a speech at Fort Bragg celebrating the military’s 250th anniversary, Trump referred to LA protesters as “animals” and a “foreign enemy” (Megerain and Price Reference Megerian and Price2025).

On June 12, U.S. District Court Judge Charles Breyer issued a TRO blocking the deployment, concluding that the administration had not established the predicates for federalization. Rejecting the government’s argument that the president’s discretion to invoke § 12406 was an unreviewable political question, the court stated that while it could not “question Defendants’ factual assertions” regarding what had occurred on the ground, it could consider whether “those factual assertions, if true, constitute a rebellion or make the President unable to execute federal law” (TRO Order at 15). In doing so, the court held that the “protests in Los Angeles fall far short of ‘rebellion’,” which requires action that is “armed,” “organized,” “open and avowed,” and “against the government as a whole” (ibid., at 19). Noting that it was “troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion,” the court rejected the government’s claim of enforcement interference: “While ICE was not able to detain as many people as Defendants believe it could have, ICE was nonetheless able to execute the federal immigration laws” (ibid., at 20, 24).

On June 19, the Ninth Circuit granted the government’s emergency motion for a stay of the TRO. Although the three-judge panel rejected the government’s broad argument that the president’s federalization decision was completely insulated from judicial review, it concluded that “our review of that decision must be highly deferential,” and accordingly “it is likely that the President lawfully exercised his statutory authority” to federalize the Guard on the ground that he “is unable with the regular forces to execute the laws of the United States” (Ninth Circuit Per Curiam Order 3–4). Relying on Martin v. Mott (1827), the court stated that § 12406 affords the President significant discretion such that courts can only review whether the President had a “colorable basis for invoking” that statute. The court rejected the state’s argument that reliance on Martin was misplaced because the circumstances were distinct, given that the question in that old case was whether individual military personnel could disobey a president’s decision to call the militia into federal service during a time of declared war on the ground that the servicemember deemed the order invalid—not, as here, whether a president could engineer circumstances to justify the open-ended use of military personnel against nonmilitary protesters in a context in which the president had engaged in numerous other well-documented actions to extend power.

After the Ninth Circuit stayed the TRO pending appeal, the district court held a trial on the merits of the state’s Posse Comitatus Act Claim. On the basis of that trial, on September 2, the court held that the administration violated the act. It stated that although there were protests “and some individuals engaged in violence,” “there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law” (Opinion Granting Injunctive Relief Sept. 2, 2025). The court concluded that because the government had “violated the Posse Comitatus Act” in June, and threatened to do so again given that 300 National Guard members remained in Los Angeles and the president sought to call troops to other cities, it was necessary to issue an injunction against further deployment (ibid.) The order went into detail about how the ongoing deployment went well beyond the bounds of supporting immigration enforcement as “part of a top-down, systemic effort by Defendants to use military troops to execute various sectors of federal law (the drug laws and the immigration laws at least) across hundreds of miles and over the course of several months—and counting” (ibid., at 43).

During this period, from the mid-June No Kings protests through August, there was little protest activity in Los Angeles, and the government withdrew most of the guard troops, with DHS Secretary Noem declaring the administration had arrested “4,481 illegal aliens in the Los Angeles area” (Dec. 12 Order at 4). Nonetheless, after a new 90-day federalization order was issued for 300 guard troops on August 5, the state filed a new TRO motion, which was stayed pending the still ongoing appeal of the district court’s June TRO. In the meantime, Trump followed the LA playbook in mobilizing the National Guard in four other cities: Washington, DC, Portland, Oregon, Memphis, Tennessee, and Chicago, Illinois. In each case, the deployments were preceded by Trump’s outlandish and false public claims about out-of-control crime or other fabricated city problems justifying intervention. In the Chicago case, US District Court Judge April Perry issued a TRO blocking the deployment, concluding that the administration had not established the factual predicate of rebellion given the small number of mostly peaceful protests at the Broadview detention center, which even when violence had occurred, were effectively handled by state and local law enforcement: “I have seen no credible evidence that there is a danger of rebellion in the state of Illinois” (Smith Reference Smith2025). A three-judge panel of the Seventh Circuit agreed, issuing an October 16 per curiam order rejecting the government’s reading of Martin to preclude judicial review, and finding no reason to disturb the lower court’s factual findings that there was no evidence of rebellion or interference with law enforcement meeting the statutory requirements (Illinois v. Trump 2025).

After a Ninth Circuit ruling that cleared the way (Oct. 22 Order), the district court enjoined the extension of National Guard deployment on the ground that there was “no evidence that execution of federal law is impeded in any way” (Dec. 10 Order at 1). The injunction instructed the Trump administration to remove all guard troops. Almost two weeks later, in the Chicago case, on petition to the Supreme Court’s “shadow docket,” the Court rejected the administration’s request to stay the Seventh Circuit’s order (Trump v. Illinois 2025). The Court concluded that the National Guard Act’s requirement that the president be unable to execute federal laws with “regular forces” referred to “the regular military” not ICE or local law enforcement and therefore “before the President can federalize the Guard under 12406(3), he likely must have statutory or constitutional authority to execute the laws with the regular military,” which the president had failed to show (ibid., at 2). Significantly, Justice Kavanaugh issued a separate concurrence questioning whether it was necessary to opine on the need for statutory authority to mobilize the regular military (ibid., 5–7). A week later, the Ninth Circuit removed its stay on the return of National Guard control to the state (Ninth Circuit Dec. 31 Order). On New Year’s Eve, Trump announced the withdrawal of troops from all cities, posting ominously on Truth Social: “We will come back, perhaps in a much different and stronger form, when crime begins to soar again.”

An Equal Place in the Rearview: Legal Mobilization in Backsliding Democracy

The Los Angeles National Guard case highlights three themes raised by the reviewers of An Equal Place in this special issue that require reconsideration in light of the Trump administration’s attacks on the city as a central part of its wider attack on American democracy.

First is the critical importance of litigation as an independent tool within the integrated advocacy context—and for the need to protect judicial independence as a foundation for successful litigation efforts. In her insightful review, Veena Dubal underscores that sometimes litigation may be one of “the best avenues to achieve collective rights.” In her own foundational work on legal mobilization in the gig economy, she found that litigation for employment status was a powerful tool for establishing rights, setting norms, and galvanizing organizing: “The fact that workers had a concrete, achievable goal—a claim to the state for basic economic rights—is what helped self-organizing drivers to build interpersonal relationships and power and created an environment in which possibilities for change remain.” This point is built upon by Leticia Saucedo, who shows how MALDEF attorneys in the voting context used a strategy “for changing the political landscape” combining “litigation, legislative proposals and the initiative process.” While she stresses that litigation is important, she cautions that “[l]itigation alone provides an opportunity, but social and political organization must be as successful as the litigation strategy to sustain change.”

It is essential to reconsider the the relative value of direct and indirect effects of litigation in the context of democratic backsliding. The importance of litigation now is not simply that it moves forward organizing (though hopefully it can and will). Rather, there is an independent, expressive, and political value in litigation against authoritarian manipulation of the legal system. Scholars from Joel Handler (Reference Handler1978) to Gerald Rosenberg (Reference Rosenberg1991) have noted the importance of litigation’s blocking function and suggested that courts do a better job of stopping bad things from happening than forcing good things to occur. The National Guard cases suggest that this observation may still hold true, although how much the administration will accept being blocked remains to be seen. In this sense, the line between affirmative cases requiring institutional reform and defensive cases requiring an institutional apparatus to ensure compliance may be thinner than previously considered. Moreover, these cases illustrate that even defensive litigation can articulate new legal norms and demystify efforts to confuse the public with fabricated claims of invasions and conspiracies. They also invite new workarounds in a never-ending game of mobilization and countermobilization.

The second theme is how to think about and defend the line between legitimate right-wing legal mobilization and illegitimate abuse of power, or “lawfare.” John Bliss touches upon this issue when he suggests that a “promising direction for further research would be to extend the comparative institutional approach to non-progressive contexts,” analyzing the use of law and integrated advocacy in “movements that are not progressive in the sense described by Cummings.” Far-right legal mobilization deliberately blurs the line, mimicking the form and function of legal liberalism—and even mainstream conservative legal activism (Southworth Reference Southworth2008)—while directing it to antidemocratic ends. Far-right mobilization raises difficult questions about what counts as legitimate legal arguments and strategies within the normal zone of constitutional conflict—and what crosses the line. It cannot be the case that even the most extreme legal arguments—that Birthright Citizenship is not a constitutional right for undocumented immigrant children—count as legitimate just because one outlier lawyer or legal scholar (or even judge) says so. As the National Guard cases show, lawyers, social movements, and courts must act in concert to push back against dangerous, fabricated factual assertions and reject normal deference accorded to such assertions just because they come from the president and the president’s loyalist lawyers.

Third, a key lesson that Anthony Alfieri, Alina Ball, and Susan Carle highlight in their review is “the importance of suspending judgment on the success or failures of the movements” in the short term in favor of long-term, iterative assessment. Dubal similarly notes that “[w]hat may be traditionally understood as a movement failure in a particular moment could be reframed as part of a long arc of monumental struggle, full of lessons for future political actions. Even what seems like a failure on its face can itself be a movement opportunity: an incremental step in a cycle that necessarily shapes the next direction of organizing. In this sense, a crucial insight of [An Equal Place] is that under the neoliberal capitalist system there are no substantive, durable wins, only substantive sustained struggle.” This lesson is even more apt in current moment, when the administration’s strategy of “flooding the zone” has succeeded in getting out ahead with legal changes that stretch opponents’ resources thin, demoralizing the opposition and weakening forces of resistance. In this context, it is crucial to maintain focus on the future, understanding that democratic social change requires sustaining hope in the face of tremendous odds. An Equal Place teaches that successful movements depend on hope to create and build momentum. This requires a clear-eyed understanding of adversary strategy as well as affirming successes, no matter how small, because they are the lever to build further momentum.

I end with a final observation about the distance traveled from Los Angeles circa 2008 to now. As Dubal notes about An Equal Place, “what is so striking about these case studies—and a lesson that I hope readers take away from the book—is the importance of cross-movement solidarity.” Alfieri, Ball, and Carle similarly highlight the role of different types of lawyers in social movements, and the importance of lawyering behind the scenes, while cautioning against “for-profit law firm partnerships,” which can carry “substantial risks for economically impoverished and politically disenfranchised communities.” While this is true, it is important to emphasize the crucial role of cross-ideological and cross-sectoral networks in building resistance to authoritarianism. Research on resistance to autocratization consistently demonstrates what does not work: silence and strategic capitulation, which only hasten democratic decline. What does work—or, at least, what has the potential of being effective even if providing no guarantee—is collective resistance. Thus far, American lawyers have failed to take collective action. This failure has been particularly glaring at the elite level, where leadership is key because it sends the signal that those with the most to lose are prepared to do so. Nonetheless, there are growing examples of lawyer resistance that provide a roadmap for further action. These disparate strands must be woven together into a tapestry of solidarity. Stopping the playbook will require law firms, law schools, state bars, and everyday lawyers to speak with a singular and strong voice to condemn the administration’s attack on the legal system and refuse cooperation across the board. Liberal legal groups must find a way to combine their critiques of conservative policy with solidarity with conservative colleagues in joint rule-of-law defense. Finally, while lawyers must be in the vanguard of protest, they cannot do it alone. Effective mobilization requires building alliances with nonlawyers strategically positioned to have an influence on the perception of ruling party legitimacy. This includes elites, like corporate and civil society leaders, along with grassroots organizations and everyday people who are outraged, or at least unsettled, but may not have the resources or security to speak out alone.

These alliances have strengthened during the first year of the Trump administration. Movement lawyers in Los Angeles and other cities continue to play a critical role, for example, challenging the constitutionality of ICE raids (Vasquez Perdomo v 2025) and defending sanctuary cities (City & County of San Francisco v 2025). The mobilization in Minneapolis against ICE is a model for law and social movement action in the Trump era: showing how people across the political spectrum can take to the street to demand the humanity of community members while lawyers can go to court to assert rights that hold government to account. This local action highlights the ongoing importance of an essential lesson from An Equal Place, which is that progressive legal mobilization demands a dual strategy: simultaneously calling out law and legal institutions for their failure to deliver on the promise of equal justice for all while carrying on the struggle to make that promise real.