Hochul to Trump: Hands off our National Guard

Gov. Kathy Hochul on Tuesday strongly condemned the prospect of President Donald Trump forcefully deploying the National Guard in New York City, an idea he floated after doing the same in Washington, D.C. and Los Angeles. The governor didn’t say what exactly she might – or frankly could – do in order to prevent such a move, but she suggested that she would keep the state’s National Guard members busy to make it harder for Trump to federalize them.

Speaking to reporters at an unrelated press conference in Queens, Hochul pointed to decreases in major crime in the city over the past several years and praised the work of the New York City Police Department. “If he crosses that bright line and decides that the 32,000 dedicated members of the NYPD are not doing their jobs, (if) he's going to stand there and insult our law enforcement officers, I think there'll be people in outrage over that alone,” she said. 

Hochul referenced her own limited deployment of the National Guard in the city’s subway system, but drew a distinction between their role as a deterrent for crime without arresting power, and what Trump wants to do with them. “(Trump) should not be saying they're going to be able to have arrest powers,” the governor said. “My God, you’re going to now militarize our streets like that?” (Although Trump has federalized National Guard troops in California, he has not invoked the Insurrection Act, which would give them arrest powers in states.)

Generally, the governor of a state would need to give permission to the president to federalize the National Guard, which is otherwise controlled by the state for state purposes. Republicans called on Hochul to do that when she deployed National Guard members to state prisons in order to fill in for striking corrections officers, a move that would have entitled those members to enhanced federal benefits. But the governor declined to do so. 

The president also has limited power to activate National Guard troops in times of emergency to assist in executing federal law without going so far as claiming a rebellion under the Insurrection Act. The Trump administration relied on that authority to deploy the California National Guard, without the permission of California Gov. Gavin Newsom, to respond to protests against federal immigration enforcement in Los Angeles. California accused the federal government of acting illegally and filed a lawsuit against the Trump administration, which is ongoing.

The outcome of the California lawsuit could have a major impact on Trump’s attempts to activate the National Guard in other Democratic cities like New York. The supremacy clause in the U.S. constitution means that state governors have few legal avenues to countermand federal orders that are considered lawful.

But Hochul on Tuesday said that she is still exploring her options when it comes to combating an attempted National Guard takeover by Trump. “I will look at all my powers,” she said when asked whether she would order Guard members to ignore a federal deployment. “But I have a feeling that right around that time, my National Guard might be really busy on other issues.”

Hochul didn’t elaborate on what she meant with the remark, but it suggests that she is considering activating the National Guard herself for various purposes to try to prevent Trump from federalizing them. But under federal law, active mobilization for state purposes would not prevent the president from federalizing and reassigning units, according to Joseph Nunn, counsel for liberty and national security at the Brennan Center for Justice. That would hold true even if they were assisting with a major natural disaster response, Nunn said, adding that the logistics and politics of redeploying them would likely still be fraught. Hochul may simply be banking on the potentially unfavorable political optics of reassigning National Guard units who are already addressing issues like subway crime in the state.

Many National Guard troops remain at correctional facilities in support roles to alleviate stress from understaffing, following the end of the correction officers’ strike earlier this year, while others have been deployed to assist the NYPD in maintaining order in the subways. Mobilizing the National Guard for purposes like that could dissuade the federal government from moving them to New York City to assist with federal issues like immigration enforcement under the guise of rampant crime.

Any attempt by Trump to bring the National Guard to the Big Apple could also see opposition from Trump’s sometimes ally, Mayor Eric Adams. Although the mayor has tried to increase local cooperation with federal immigration enforcement, he told reporters on Tuesday that “we don’t need anyone to come in and take over.”