The Real Problem Is How Trump Can Legally Use the Military

The militarization of American cities, including Los Angeles, Portland, and Chicago, has brought home a perverse irony. Throughout the history of the United States, immigrants have come here to escape authoritarian governments. But, in the twenty-first century, it is Donald Trump’s crackdowns on immigration, and on the protests against them, that are giving him momentum in the direction of ersatz dictatorship. The President has also threatened to deploy troops in more cities, such as San Francisco, Baltimore, and New York, against the will of the states’ governors.

At the nation’s founding, James Madison warned that “a standing military force, with an overgrown Executive will not long be safe companions 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 the Commander-in-Chief, and Congress, which funds and regulates the military, declares war, and provides “for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” In the Posse Comitatus Act of 1878, Congress spelled out that it is generally forbidden to use the military for civilian law enforcement. But, in a statute from 1956, Congress gave the President the authority to federalize any state’s National Guard in the event of an “invasion by a foreign nation” or a “rebellion” against the federal government, or in cases when “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 L.A. to protect ICE officers and other federal employees, functions, and property at sites where people were protesting against the Administration. Those deployments provoked more protests, which, in turn, fuelled the Administration’s claims that troops are needed to quell them. The sight of armed soldiers outfitted for war on city streets strikes many Americans as a frightening escalation from a President seemingly bent on punishing those who oppose him. The problem, though, is not what’s illegal but what isn’t. The lawfulness of Trump’s actions hinges on circumstances specified by Congress, and the courts have not been uniform in evaluating them.

A federal district court in California temporarily blocked the deployment of troops to L.A. in June. But the Ninth Circuit lifted the block, recognizing that courts are “highly deferential” to a President’s assessments. It found that Trump likely had a “colorable basis” for claiming to be “unable with the regular forces to execute” federal immigration law, given the evidence that some protesters had violently interfered with law enforcement by throwing things at ICE vehicles and federal officials, utilizing “dumpsters as a battering ram” at a federal building, lobbing Molotov cocktails, and vandalizing property. The California district court later ruled that the Administration had violated the Posse Comitatus Act by using soldiers to execute federal law, and an appeal is pending.

Last week, an Oregon federal district judge, Karin Immergut, who had been appointed by Trump, found that the President probably lacked the authority to federalize the National Guard to deploy in Portland in September. That conclusion rested largely on the contrast between Portland and L.A. in the weeks leading up to the President’s orders regarding each city. That is, unlike when Trump sent troops to L.A., “it had been months since there was any sustained level of violent or disruptive protest activity in Portland.” The Justice Department’s claims of disruptive protests in September included “setting up a makeshift guillotine,” posting a photo of an ICE vehicle online, and shining flashlights in drivers’ eyes—all of which, Judge Immergut said, could be successfully handled by law enforcement.

The President didn’t help his case by spreading outlandish falsehoods. He posted on Truth Social about “War ravaged Portland,” “ICE Facilities under siege from attack by Antifa, and other domestic terrorists,” and “Chaos, Death, and Destruction.” Even affording “a great level of deference” to the President, Judge Immergut concluded that the claim that Trump had been unable to execute federal law was “simply untethered to the facts.” But this commonsense point about Trump’s credibility may be controversial, too, because of the difficulty in determining when judicial second-guessing of the President’s assessments amounts to usurping the power that Congress has delegated to him. The Ninth Circuit may well ignore Trump’s posts and find that even low-level disruptions in recent weeks, or violent incidents from months earlier, are sufficient for him to send troops to protect federal officials’ ability to do their jobs. Meanwhile, a district court temporarily enjoined the deployment of troops in Illinois, noting that the Administration’s perception of events is “simply unreliable,” which was a polite way of rejecting the warping of reality entailed in viewing the protests in Chicago as a “rebellion.”

What is perhaps most concerning is that wide judicial deference to a truth-indifferent President may mean that there is effectively little to no constraint on what he can do, which would quickly erase the separation of powers, not to mention the federalism, that the Constitution is supposed to insure. The statute on federalizing the National Guard is only one of many laws that allow the President to decide whether certain circumstances exist—an invasion, a rebellion, an emergency, an “unusual and extraordinary threat”—and so exercise an extraordinary power. Last week, Trump said that, if necessary, he would invoke another statute, the Insurrection Act, which creates an exception to the prohibition on using the military for law enforcement: “If people were being killed and courts were holding us up, or governors or mayors were holding us up, sure, I’d do that.” The Insurrection Act, which Trump has frequently mentioned in the past, gives the President staggeringly broader power. For instance, it permits him to use military force inside the U.S. “as he considers necessary to suppress” any “conspiracy” that “opposes or obstructs the execution” of federal law. Judges and state officials must surely understand that, if they stymie Trump, he is poised to unleash a more dangerous and harder-to-check power that Congress has already handed him.

Congress wrote such statutes with the apparent assumption that whoever held the office of the Presidency would use the powers they granted in good faith. Courts, for their part, developed legal doctrines that require them to presume the President’s good faith in deferring to him. The law may therefore be on the President’s side, which is troubling for what it suggests about its capacity to protect against tyranny. Judge Immergut insisted that “this is a nation of Constitutional law, not martial law.” We must hope that they do not turn out to be one and the same. ♦