Governor Mum on Trump’s Latest Border Plans

On Thursday, President Donald Trump announced plans to send 2,000 to 4,000 National Guard troops to the southern border to assist federal officials with immigration and drug enforcement. As expected, a chorus of Democrats lined up to criticize the move, with California Senate President pro Tem Kevin de León calling it an “ill-conceived, unnecessary and counterproductive” plan in a letter to Governor Jerry Brown.

Notably absent from the criticism was Jerry Brown himself. Despite the direct impact on his state, the governor was virtually silent on the matter. He made no public statements, instead referring any questions to a spokesperson for the California National Guard.

Given Brown’s quick and forceful reactions to previous Trump announcements, some found his reticence curious.

Claremont McKenna College political science professor Jack Pitney believes the governor could simply be waiting for more details.

"In contrast to his 1970s persona as an eccentric, Jerry Brown is actually a pretty cautious warrior and he's probably just weighing the policy merits of this move,” said Pitney. If the primary aim of the move is immigration enforcement, he’d likely balk. But troop presence aimed at preventing drug imports could be beneficial for California.

Another possibility: the governor may feel his hands are tied.

Title 10 of the U.S. Code establishes federal authority over active duty members of the National Guard. A governor can refuse a president’s order, but there may not be much he could do after that.

Bryan Hockaday, a spokesman for Oregon Gov. Kate Brown, seemed to acknowledge this after the governor said she would deny Trump’s request. (Nevada's Republican governor, Brian Sandoval, has also bucked the plan.)

Trump "can federalize the National Guard forces, and there's not much the governor can do to prevent that," Hockaday said.

USC law professor Dwight Stirling, who has served as a military lawyer for the California National Guard, has written about this issue at length. He also spoke to California Public Radio Friday about what would happen if Brown ultimately decided to reject the president’s plan.

In short, a serious fight could ensue.

Stirling says Trump could cut the California National Guard’s federal funding – or end its federal recognition, meaning California guard members could no longer be part of the U.S. military.

“Now what could also occur here,“ he adds, “is the president could put the California National Guard under his control.”

That’s known as federalizing the Guard, under a different part of U.S. law.

But then, under a post-Civil War law called the Posse Comitatus Act, guard members wouldn’t be allowed to enforce domestic laws the way the Border Patrol can.

That means guard members could not arrest, search or seize people or goods entering America from Mexico – which is what Trump's critics fear the troops would be asked to do.

California has never been one to shy away from a Trump fight, but it is already battling the administration on multiple fronts and is now grappling with a simultaneous revolt from within. Perhaps Gov. Brown is coming around to the old adage that one must pick their battles. After all, California has a lot on her plate.

UPDATE: Gov. Brown agrees. Sort of.


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