The Real Problem Is How Trump Can Legally Use the Military
The militarization of American cities, including Los Angeles, Portland and Chicago, has sparked a perverse irony. Throughout U.S. history, immigrants have come here to escape authoritarian governments. But in the 21st century, it is Donald Trump’s repressive measures against immigration and the demonstrations against this immigration which give him the impetus towards an ersatz dictatorship. The president also threatened to deploy troops to more cities, such as San Francisco, Baltimore and New York, against the wishes of those states’ governors.
At the nation’s founding, James Madison warned that “a standing military force, with an overgrown executive, will not long be a sure companion to liberty” because of the temptation to turn soldiers into “instruments of tyranny at home.” The Constitution divides power over the military between the President, who is commander in chief, and Congress, which finances and regulates the military, declares war, and provides for “calling out the Militia to execute the laws of the Union, suppress insurrections, and repel invasions.” In the Posse Comitatus Act of 1878, Congress clarified that the use of the military to enforce civil law is generally prohibited. But, in a 1956 law, Congress gave the president the authority to federalize any state’s National Guard in the event of an “invasion by a foreign nation” or “rebellion” against the federal government, or in cases where “the President is unable, with the regular forces, to execute the laws of the United States.”
In June, President Trump first mobilized thousands of National Guard troops and hundreds of Marines to Los Angeles to protect ICE officers and other federal employees, functions and property at sites where people were protesting the administration. These deployments sparked more protests, fueling government claims that troops would be needed to quell them. The sight of armed soldiers equipped for war on city streets strikes many Americans as a frightening escalation by a president seemingly determined to punish those who oppose him. The problem, however, is not what is illegal but what is not. The legality of Trump’s actions depends on the circumstances specified by Congress, and the courts have not uniformly assessed them.
A federal district court in California temporarily blocked the deployment of troops to Los Angeles in June. But the Ninth Circuit lifted the hold, recognizing that courts show “great deference” to the president’s assessments. He concluded that Trump likely had a “colorable basis” for claiming to be “unable, with regular forces, to enforce” federal immigration law, given evidence that some protesters had violently interfered with law enforcement by throwing objects at ICE federal vehicles and officials, using “dumpsters as battering rams” in a federal building, throwing Molotov cocktails, and vandalizing property. The California District Court later ruled that the administration violated the Posse Comitatus Act by using troopers to execute federal law, and an appeal is pending.
Last week, a Trump-appointed Oregon District Judge, Karin Immergut, ruled that the president likely did not have the authority to federalize the National Guard so that it would be deployed to Portland in September. This conclusion was based largely on the contrast between Portland and Los Angeles in the weeks leading up to the president’s orders regarding each city. In other words, unlike when Trump sent troops to Los Angeles, “it had been months since there had been a sustained level of violent or disruptive protest activity in Portland.” The Justice Department’s allegations regarding the disruptive September protests included “setting up a makeshift guillotine,” posting a photo of a ICE vehicle in line and flashlights shined in drivers’ eyes — all things, Judge Immergut said, that could be successfully handled by law enforcement.
The president hasn’t helped his case by spreading wild lies. He posted on Truth Social about “War has ravaged Portland,” “ICE facilities under siege from attacks by Antifa and other domestic terrorists” and “Chaos, death and destruction.” Even while giving “great deference” to the president, Judge Immergut concluded that the assertion that Trump had been unable to execute federal law was “simply irrelevant to the facts.” But this common-sense point about Trump’s credibility may also be controversial because of the difficulty of determining when a judicial challenge to the president’s assessments amounts to usurping the power Congress has delegated to him. The Ninth Circuit may well ignore Trump’s messages and find that even the low-level disruptions of recent weeks, or violent incidents of previous months, are enough for him to send troops to protect the ability of federal officials to do their jobs. Meanwhile, a district court temporarily barred the deployment of troops to Illinois, noting that the administration’s perception of events is “simply unreliable,” which was a polite way of rejecting the distortion of reality involved in calling the Chicago protests a “rebellion.”
Perhaps most worrying is that great judicial deference to a president indifferent to the truth may mean that there are effectively little or no constraints on what he can do, which would quickly erase the separation of powers, not to mention federalism, that the Constitution is supposed to ensure. The National Guard Federalization Act is just one of several laws that allow the president to decide whether certain circumstances exist – an invasion, a rebellion, an emergency, an “unusual and extraordinary threat” – and thus exercise extraordinary power. Last week, Trump said that, if necessary, he would invoke another law, the Insurrection Act, which creates an exception to the ban on using the military to enforce the law: “If people were being killed and the courts were holding us back, or the governors or the mayors were holding us back, of course I would do it. » The Insurrection Act, which Trump has often mentioned in the past, gives the president incredibly broader powers. For example, it allows it to use military force within the United States “if it deems it necessary to suppress” any “conspiracy” that “opposes or obstructs the execution” of federal law. Judges and state officials must certainly understand that if they thwart Trump, he is about to unleash a power more dangerous and harder to control than Congress has already given him.
Congress framed such statutes with the apparent assumption that whoever held the office of president would use the powers granted to him in good faith. The courts, for their part, have developed legal doctrines that require them to presume the good faith of the president when relying on him. The law could therefore be on the side of the President, which is troubling for what it suggests about its ability to protect against tyranny. Judge Immergut insisted that “this is a nation of constitutional law, not martial law.” Hopefully they don’t turn out to be one and the same person. ♦
