On a recent date, President Donald Trump signed a Presidential Proclamation to mobilize 2,000 National Guard personnel to address protests against Immigration and Customs Enforcement (ICE) immigration raids occurring in Los Angeles. This action does not invoke the Insurrection Act but instead relies on a more limited legal theory known as the protective power, alongside emergency statutory authority under 10 U.S.C. 12406.

The memorandum issued by the president characterizes the ongoing protests as threats to the "faithful execution of Federal immigration laws" and claims that "violent protests threaten the security of and significant damage to Federal immigration detention facilities and other Federal property." It concludes by suggesting that protests inhibiting the execution of laws may constitute a form of rebellion against U.S. authority.

The legal basis for this mobilization is drawn from 10 U.S.C. 12406, which allows the president to call National Guard personnel into federal service under specific circumstances, including actual or threatened rebellion against the U.S. government. The memorandum implies that the protests fall under this second category, although this assertion is subject to factual contestation.

The president's authorization permits National Guard personnel to protect ICE and other federal personnel engaged in federal functions, as well as federal property in areas where protests are occurring or anticipated. This directive aligns with the Department of Justice's Office of Legal Counsel's interpretation of the protective power, which asserts the president's inherent authority to use troops for the protection of federal property and functions.

However, the protective power does not extend to general law enforcement functions, which are more broadly covered under the Insurrection Act. The memorandum acknowledges that the deployed military personnel may perform protective activities deemed necessary by the Secretary of Defense, emphasizing that these actions should not be construed as law enforcement activities.

The historical context of the protective power can be traced back to earlier uses of military force in domestic matters, raising concerns about the potential for overreach and the implications for civil liberties. As the situation develops, scrutiny of the legal and ethical boundaries of this military mobilization will be essential, particularly in light of past instances where similar authority has been invoked in response to civil unrest.