Orders calling the guard in to federal service have to be issued through the governor under US code. Id wondered what their excuse was for trying to bypass California's governor. Well today I found it, and it gave me a good chuckle. Presented for the community's amusement is Trump's legal position on tbe subject:
(from federal district court judge Breyer's opinion, Trump's excuse bolded)
2. Section 12406’s Procedural Requirements
Shortly after enacting the Militia Act of 1903, Congress amended the Act to require that any orders issued under § 12406 be issued “through the governor of the respective State ... from which State ... such troops may be called.” Militia Act of 1908, Pub. L. No. 60-145, § 3, 35 Stat. 399, 400. Section 12406 maintains this requirement: “Orders for these purposes shall be issued through the governors of the States ... .”
Plaintiffs assert that President Trump failed to comply with this procedural requirement. They explain that Governor Newsom first learned that President Trump had called 2,000 of California’s National Guard members into federal service when California’s adjutant general forwarded him the June 7 DOD Order. See Espíritu Decl. Ex. K. From that point on, the commander of U.S. Northern Command, not the Governor, has issued all orders to the federalized National Guard. See Espíritu Decl. Ex. J. Similarly, Secretary Hegseth—not Governor Newsom—issued the June 9 order calling another 2,000 National Guard members into federal service. See Espíritu Decl. Ex. S.
Defendants assert that they complied with § 12406 because written at the top of the June 7 and June 9 DOD Orders was the label “THROUGH: THE GOVERNOR OF CALIFORNIA.” Opp. at 17. True enough. But an interpretation of § 12406 that permits the President to federalize a state’s National Guard by typing the phrase “Through the Governor of [insert state here]” at the top of a document that the President never sends to the governor strains credibility, especially given that Congress specifically amended the statute to add the requirement that orders “shall be issued through the governors.” See Militia Act of 1908 § 3.
