The deployment of the National Guard in U.S. cities is entirely different from anything that I’ve seen before. As the federal government began investing in and taking a greater role in the crime control apparatus beginning in the mid-1960s under the Johnson administration, policy makers were extremely careful about not violating the Posse Comitatus Act, which was enacted at the end of Reconstruction to bar the federal government from using troops in civilian law enforcement without specific authorization from the Constitution or Congress. Those policy makers took a kind of originalist interpretation of the framers’ intent to prevent a “large standing army,” as they called it in the 18th century, or a federalized police force, as Johnson and his advisers saw it. We see this from Johnson through Reagan and even Clinton, even as the line is often blurred in the exercise of federal authority in local law enforcement, which is often done through interagency collaboration with police departments. There’s always discussion and awareness among federal officials that they can’t take the national crime control program too far because this country was established not to have a federal police force.
But those questions about whether law enforcement can and should be federalized, and at least a recognition of how the framers intended the structure of crime control and law enforcement in this country to operate, don’t seem to be a consideration of the current administration.
With the exception of moments when the federal government had to intervene to ensure the proper enforcement of civil rights laws, such as during the Reconstruction period or in Alabama in 1965, I don’t believe there has ever been a time in American history when the National Guard was sent into a place without the request of a governor and local officials. Throughout the 20th century and until Trump 2.0, the National Guard was deployed after governors begged the White House for additional support for local law enforcement. The idea that the National Guard would be deployed against the wishes of governors and other state and local officials is unheard of.
We saw a lot of National Guard deployments in the 1960s and fewer National Guard deployments during moments of political violence in the early 1970s, in part because the federal government, through the Omnibus Crime Control and Safe Streets Act of 1968, essentially militarized local law enforcement. The law facilitated military transfers from the Department of Defense to local law enforcement, and the idea behind that was the feds can’t keep on deploying the National Guard in American cities every time Black and brown folks get rowdy. So they’ve got to get the M1 carbine rifles, the grenades, and the tanks to local law enforcement.