President Donald Trump’s deployment of nearly 4,000 National Guard troops and 700 US Marines to Los Angeles has pushed the legal boundaries of how the military can be used to enforce domestic laws in American cities.
Gavin Newsom, the Governor of California, intends to prove it in court. The state has filed a lawsuit, claiming, “President Trump has repeatedly invoked emergency powers to exceed the bounds of lawful executive authority.”
“On Saturday, June 7, he used a protest that local authorities had under control to make another unprecedented power grab, this time at the cost of the sovereignty of the state of California and in disregard of the authority and role of the Governor as commander-in-chief of the state’s National Guard,” according to the complaint, which was sent to federal court.
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United States District Judge Charles R. Breyer agreed. Breyer, a Bill Clinton appointee and brother of retired Supreme Court Justice Stephen Breyer, declared Trump’s “actions were illegal — both exceeding the scope of his statutory authority and violating the Tenth Amendment to the United States Constitution,” and ordered that control of the National Guard be returned to Newsom.
The order was supposed to go into effect at noon on Friday, but the 9th U.S. Circuit Court granted an administrative stay late Thursday night, putting Breyer’s order on hold — at least temporarily.
This lawsuit pits the Insurrection Act against the Posse Comitatus Act. One act is over 200 years old, while the other is nearly a century and a half.
The Insurrection Act, passed in 1807, authorizes the president to deploy military forces within the United States to suppress rebellion, invasion, or enforce federal law in certain circumstances.
The Posse Comitatus Act, passed in 1878, was designed to prevent the federal military from intervening in the establishment of Jim Crow laws in the former Confederacy following Reconstruction. The Act’s overarching principle is to prevent the military from interfering with civilian government affairs.
The Insurrection Act allows troops to be deployed under several sections of the law. The statute’s requirements are not clearly defined, so the president has discretion over some aspects of the law. One provision allows the president to send troops in response to a governor’s request. A second provision gives the president the authority to deploy troops to “enforce the laws” of the United States or to “suppress rebellion” whenever illegal obstructions make it difficult to enforce federal law — even against the state’s will.
A third provision states that if anyone in a state is being deprived of a constitutional right and state authorities are unable or unwilling to protect that right — think Presidents Dwight D. Eisenhower and John F. Kennedy after Brown v. Board of Education — the president may deploy troops.
“He [Trump] is declaring utterly bogus emergencies for the sake of trying to expand his power, undermine the Constitution, and destroy civil liberties,” Ilya Somin, a libertarian professor at Antonin Scalia Law School, told the New York Times.
Now let’s compare the Insurrection Act to the Posse Comitatus Act. The Posse Comitatus Act is made up of one line: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
In practice, this means that members of the military who are subject to the law may not participate in civilian law enforcement unless specifically authorized by a statute or the Constitution. That statute is supposed to be the Insurrection Act, but there is no insurrection or rebellion, and Trump has stated as such.
Here is Trump’s rationale, directly from a June 7 White House memo:
In light of these incidents and credible threats of continued violence, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby call into Federal service members and units of the National Guard under 10 U.S.C. 12406 to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.
Section 12406 allows the President to activate the National Guard if the country is “invaded or is in danger of invasion by a foreign country,” there is a “rebellion or danger of rebellion,” or the president is unable to execute the laws of the United States with regular forces. Section 12046 states that orders for these purposes must be issued by state governors.
The White House is blatantly violating the United States Constitution. But why? The New York Times suggests, after speaking with various experts, that the “real purpose, they worry, may be to amass more power over blue states that have resisted Trump’s deportation agenda.”
And the effect, whether intentional or not, may be to exacerbate tensions in Los Angeles, potentially leading to a vicious cycle in which Trump calls in more troops or broadens their mission.”
