Someone Should Have Told Andrew Johnson

On the word "through"

There is much to say about the lawsuit being heard today by Gavin Newsom against Donald Trump over the deployment of the National Guard in California (a lawsuit that I think will likely fail, on preliminary relief grounds at the very least). The Newsom brief is here, and the Trump brief (by DOJ federal programs) is here. But here I just want to offer a brief thought on an issue of statutory interpretation.

The Trump brief is generally very good, but perhaps the toughest issue for them is the fact that 10 U.S.C. §12406 says that “Orders for these purposes shall be issued through the governors of the States,” while the order in this case was given from the Secretary of Defense to the California national guard without going to and then from Governor Newsom as part of the chain of command.

Here is the US brief on this issue:

3. Section 12406 does not require a governor’s consent or input.

Defendants also acted lawfully in the processes they used to federalize Guardsmen. Section 12406’s first sentence establishes the President’s unilateral authority to federalize Guardsmen. Again, it reads: “[T]he President may call into Federal service members and units of the National Guard of any State . . . .” The next sentence adds that “[o]rders for these purposes shall be issued through the governors of the States.” 10 U.S.C. § 12406. The statute is thus clear that the orders are issued by the President, and they are conveyed through State officials. Nothing in the statute entitles a Governor to veto or impede a valid presidential order.

The President complied with this procedural provision. Secretary Hegseth’s memorandum was issued to California’s Adjutant General, a state cabinet-level official who is required under California law to perform “duties consistent with the regulations and customs of the United States Army, United States Air Force, and the United States Navy[,]” including “issu[ing] all orders in the name of the Governor.” Cal. Mil & Vet Code § 163 (emphasis added). The memorandum bore the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” ECF No. 8-1, at 107. And Secretary Hegseth sent a second memorandum federalizing an additional 2,000 Guardsmen on Monday with the same label. ECF No. 8-1, at 111. There is no dispute that the Governor had actual and contemporaneous knowledge of the order—indeed, he acknowledged that it was forthcoming before it even issued. This procedural objection is thus meritless, and certainly not a basis to issue an unprecedented injunction against the deployment of military forces.

Plaintiffs, however, interpret the statute to “require[] orders under § 12406 be issued by the Governor.” TRO Mot. at 11 (emphasis added). But Section 12406 does not use the word “by.” And there is a fundamental difference between orders issued “by” a person (making them the decisionmaker) and orders issued “through” that person (making them a mere conduit for a decision already made). The latter better aligns with the purpose of this procedural requirement, as the federalization of the California National Guard requires a careful handover of command and control from the State Commander in Chief (the Adjutant General) to the Federal Commander-in Chief. Orders going “through” the Governor, in particular the Governor’s Adjutant General, provides proper notice and avoids command confusion which is critical in an emergency.

Meanwhile, when Congress has wanted to give the Governor veto power, it has done so expressly. For example, the Secretary of Defense may “order a member of a reserve component under his jurisdiction to active duty” except that members “may not be ordered to active duty . . . without the consent of the governor or other appropriate authority of the State concerned.” 10 U.S.C. § 12301(d) (emphasis added). Likewise, the Secretary may order a member of the Army, Navy, Marine, or Air Force Reserves to active duty to provide assistance in response to a major disaster or emergency, but only after receiving a request from a Governor. 10 U.S.C. § 12304a(a). Yet Section 12406 omits any language even hinting that Governor could withhold his consent.

In short, Section 12406 affords no veto to Governor Newsom over the President’s decision to call forth the guard, just as it afforded no veto to Governor Faubus when President Eisenhower last invoked the predecessor to Section 12406 to ensure that the enforcement of federal law was not obstructed.

Plaintiffs also suggest that the statute imposes a gubernatorial consultation requirement. TRO Mot. at 11. They complain that Defendants “violate[d] the letter of the law” by “depriving the Governor of the opportunity to consult with the President.” Id. That too is wrong both legally and factually. Nothing in the statute requires consultation. Anyway, as explained, President Trump spoke with Governor Newsom about the situation in Los Angeles the day before he federalized guardsmen. In that discussion, the President directed the Governor to take control of riots in Los Angeles. Id. Lines of communication between the President and Governor Newsom were open. The next day, the President signed a memorandum that directed to the Secretary of Defense to federalize the Guardsmen. ECF No. 8-1, Ex. E. Governor Newsom acknowledged that act in a public statement. See supra.

Finally, even if Plaintiffs’ interpretation of the statute were correct, the only party acting unlawfully would be Governor Newsom—not President Trump or Secretary Hegseth. Section 12406 uses the mandatory “shall,” depriving the Governor of any possible discretion in whether to issue an order. So if the order was not issued “through” the Governor via the Adjutant General who acts in his name, then the Governor should have issued the order himself, rather than drafting a press release objecting to the presidential memorandum. His failure to comply with President Trump’s lawful order to federalize California’s guardsmen cannot somehow support an injunction against the federal government.

In other words, the claim is that the statutory requirement of issuing orders “through the governors” is satisfied by writing “THROUGH: THE GOVERNOR” at the top of the orders and then basically cc’ing the governor. Maybe that’s the right interpretation of the statute, I don’t know. But it stands in contrast to another historical dispute over the word “through” in this context.

In 1867, Congress passed a law (14 Stat. 485, 486-487) telling President Andrew Johnson that “all orders and instructions relating to military operations issued by the President or Secretary of War shall be issued through the General of the army.” (It also provided that ”The General of the army shall not be removed, suspended, or relieved from command . . . except at his own request without the previous approval of the Senate.”) The General of the army was at the time Ulyssess S. Grant, who Congress trusted a lot more than they trusted President Johnson.

Congress and Johnson, apparently understood the preposition “through” the way Governor Newsom does, not the way that President Trump does. Indeed, for this reason, Johnson believed that the command was unconstitutional. Though Johnson signed the bill (because it contained “necessary appropriations”) he objected that this section “in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army.” I suppose that under the administration’s interpretation of “through” today, Johnson could have instead just given orders to the Army himself, and written “THROUGH: THE GENERAL OF THE ARMY” at the top.

(Could Trump instead make Johnson’s Commander-in-Chief argument, that even if “through” means “through” the statute is unconstitutional? He hasn’t tried, and I’m not sure if he could. The President’s Commander-in-Chief power over the milita is complicated. Under Article II the President is “Commander in Chief of the Army and Navy of the United States,” all of the time, but “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States,” which is the very predicate being disputed here. And the relationship of the constitutional “militia” to today’s “national guard” is also complicated, as detailed in a series of papers by Robert Leider.)

Anyway, I’m not sure any of this will matter to the preliminary disposition of the case, but it might be of interest to those who think about the law

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