Harvard Law professor emeritus Alan Dershowitz predicted Monday on Newsmax that the U.S. Supreme Court will not challenge the president’s authority to deploy federal troops preventively, even amid ongoing controversy over recent riots in Los Angeles.
Appearing on “The Record With Greta Van Susteren,” Dershowitz discussed the legal boundaries between protected protest, criminal incitement, and presidential authority.
The interview took place during the current violent protests in Los Angeles related to immigration enforcement, where approximately 2,000 National Guard troops have been sent by the administration to the city, with 700 Marines reportedly now joining them in a support role.
Dershowitz, author of “The Preventive State,” said legal precedent favors broad executive discretion. “For the last thousand years, we’ve been trying to cover that line,” Dershowitz said when asked to define the boundary between lawful protest and criminal incitement. “It’s not a line; it’s a squiggle. It varies over time.”
Referencing the Supreme Court’s landmark decision in Brandenburg v. Ohio, Dershowitz noted that the legal threshold for incitement — “a direct incitement to immediate violence” — is rarely met.
“That’s not the issue as to whether or not the president can call out the National Guard. He’s doing it for preventive reasons,” Dershowitz said. “The Supreme Court of the United States will not second-guess the authority of the president of the United States in determining that it’s warranted to send in federal troops in a preventive manner.”
He added that presidents historically have exercised this authority without interference from the judiciary, provided there is a rational basis for their decisions.
“If he anticipates or thinks that more violence could happen, that would be enough,” Dershowitz said. “As long as he has a reasonable basis for that… the Supreme Court will not interfere with the discretionary decision of a president.”
Dershowitz pointed to past examples — such as Hawaii after the Pearl Harbor attack and federal troop deployments during the civil rights era — as precedent for preventive federal interventions.
“If the president did it for improper reasons, for example, to call off an election… the Supreme Court would intervene,” he said. “But in a case like this, you have people engaged in violence that is not protected by the First Amendment.”
Dershowitz cited prior riots in Minneapolis, Oregon, and California following high-profile police cases as examples of violence that federal forces may be deployed to deter.
“He could be wrong,” Dershowitz acknowledged. “Maybe he’s exacerbated the situation after the fact… but no court is going to interfere with that in an ongoing way while the violence is continuing.”
He also criticized state governments for failing to stop prior unrest. “They didn’t do it in the Rodney King case. They didn’t do it in the George Floyd case,” Dershowitz said. “It’s perfectly reasonable for the federal government to say, ‘We’re going to do now what we did in 1955, 1961 or 2.'”
“I think you can predict with relative assurance that the court’s not going to interfere with this.”
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