McGeorge Adjunct Professor Chris Micheli

As we near the end of the week of California’s shelter-in-place order, and with both Governor Newsom and President Trump putting the National Guard to use here in California to slow the spread of COVID-19, there is concern about whether the pandemic will somehow result in the imposition of martial law.

Neither the United States nor the State of California specifically actually have much experience with martial law, either how it could be used, or what might warrant or justify its use. The last time that martial law was instituted was back in Hawaii at the start of World War II. In California, the state National Guard was most recently used to enforce state laws in 1992 after the beating of Rodney King and the ensuing riots in Los Angeles.

If we look at the California Constitution it provides very succinctly that the governor is the Commander in Chief of a militia that shall be provided by statute, and that the governor may call it forth to execute the laws. This is similar to many other state constitutions, where the governors are made commanders of their respective state militias, which, of course, today we call that the National Guard. They can utilize the National Guard troops, again, to enforce the laws, and even the executive orders that are issued by the respective governors.

So far, Governor Newsom has been using the National Guard in limited instances to assist with food banks, some different community activities. He has not so far enlisted the National Guard to either enforce state law or any of his executive orders.

You may have also read or heard that President Trump announced that he had activated the National Guard in three states – including California – in order to combat the spread of the coronavirus. Note that these federal National Guard troop members are reportable to FEMA but they are under the command of the governors of those states. In theory, there could be National Guard troops that are under the president’s command, and a separate set of state National Guard members who are commanded by the state’s governor.

You can find the full transcript of today’s podcast here.