Posse Comitatus: The Power of the County

We have already called what’s happening in our country a coup. By February, it was clear.

And then, life just went on. Trump survived the labeling. Fox News continued its broadcasts without missing a beat. Rubicon crossed, we all moved forward, and little changed—unless you’re one of those people who has been paying close attention and couldn’t get rid of the bad feeling that woke you up in the middle of the night.

Now we’re in another one of those moments, an unprecedented one in American history, with a president trying to use the military, ostensibly to keep order on American streets. But there is no indication that local authorities in Los Angeles can’t keep the peace just fine all by themselves and plenty of suggestion that militarizing the city may make it boil over. As my friend and colleague Preet Bharara said when we were taping our Insider podcast this morning, we try to give administrations the benefit of the doubt, but one no longer deserves it. The specter of military forces, loyal to a president, for who personal loyalty is all that matters, on American streets should terrify all of us. When you consider that the presidential edict that permits Trump to do this isn’t limited to Los Angeles—it has no geographic limitations—and that he has been intimating all week that he will send federalized troops wherever there are protests, (not just violence but Americans out exercising their First Amendment rights), then it’s clear this is a very dark moment indeed.

Trump: on protecting his military parade and his view of citizens who exercise their constitutional rights: “They will be met with very big force. People that want to protest will be met with big force. I have not heard about a protest but this is people that hate our country. They will be met with heavy force.”

Meanwhile, we have all watched as 700 Marines joined National Guard troops in Los Angeles, assigned there in response to protests over ICE raids at local workplaces. The order that got them there has the most innocuous of names: Department of Defense Security for the Protection of Department of Homeland Security Functions. I’m not even sure what that translates into? The military protecting federal law enforcement? Who does federal law enforcement need protection from? If we were living in George Orwell’s 1984, it would be comprehensible as Newspeak for, “the government is going to impose its will on all of y’all.” And I do mean all; today it’s Los Angeles, but tomorrow it could be anywhere. The order purports to give Trump the authority to deploy both federalized National Guard units and active duty members of the armed forces.

You’ll remember from Sunday’s post that the rule under which Trump is operating, 10 U.S.C. 12406, provides that “the president may call into federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws,” in the event that “the United States, or any of the commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; there is a rebellion or danger of a rebellion against the authority of the government of the United States; or the president is unable with the regular forces to execute the laws of the United States.” There are lots of conditions that have to be in play before a president can do what Trump is doing. I’m still looking for the invasion or rebellion in Los Angeles and not seeing one, let alone one that couldn’t be handled, if it was actually happening, by the steady stream of California law enforcement who are now ever-present.

Under the Constitution, police powers are reserved to the states. The Posse Comitatus Act prohibits the federal government from using the military inside of the domestic United States for law enforcement, absent truly compelling circumstances. So while the president can federalize the militia, what we now call the National Guard, if he’s “unable with the regular forces to execute the laws,” those forces can’t do anything that isn’t already authorized by law. To the point, Trump can’t use them to conduct military-style roundups of immigrants—even though we all know that’s precisely what he wants to do and where he hopes this is headed.

That’s the crux of the matter. Using the military to advance his personal political agenda isn’t legal, and Trump knows it. But if he can frame this as an insurrection, he might get away with it. That may well be why he’s trying to provoke a confrontation on the streets of Los Angeles, sending in the Marines.

Posse Comitatus is Latin for “the power of the county,” a reference to the olden practice of a sheriff summoning a posse, a group of citizens to assist him in keeping the peace, doing rescue work, or arresting criminals. The Act itself was passed in 1878 and reflects the desire of Southern white supremacists to keep the military from intervening as they established Jim Crow. But its basic principle, reserving police powers to the states and keeping them free from federal military interference is deeply grounded in the views of the Founding Fathers.

One way around the Posse Comitatus Act is the Insurrection Act. When it is invoked by a president, it allows the military to be used for domestic law enforcement, but—and it’s an important caveat—only to restore order. It’s not a permanent or a nationwide takeover. But Trump hasn’t invoked the Insurrection Act. That’s widely believed to mean he still has to operate within the constraints of Posse Comitatus, which limits the role of both the National Guard troops whom he has federalized under section 12406 and the Marines, to protect federal law enforcement and federal property. But the devil is in the details and it’s hard to believe that a president who has worked so hard to accumulate power in his own hands won’t make a move here, designed to let him go around restrictions on the use of the military on American soil.

California has sued over the use of National Guardsmen and they have a lot of good arguments. (As I flagged Sunday night, there is a legal question about whether the president can bypass the governor in bringing federal troops in and California has also argued the president’s order violates the Administrative Procedure Act because it’s arbitrary and capricious.) California’s lawsuit goes where all good legal arguments start: with the language of 10 U.S.C. 12406. The trigger in the statute only lets the president federalize the Guard and use them for law enforcement purposes if there is invasion, danger of invasion, rebellion, danger of rebellion and so forth. But today, people went to work in downtown Los Angeles like normal. The exercise of First Amendment rights by American citizens is not a rebellion, even if the president views them as “criminals.” Vandalism is unacceptable. But there is no indication the Los Angeles Police Department and Sheriff’s Department aren’t up to the job of arresting looters.

Sometimes, you have to step out of the noise of the moment and apply common sense to assess the arguments the Trump administration makes. All you see on social media these days is the picture of the Waygo car on fire, playing over and over as if all of LA County is on fire along with it. I’m not an apologist for the role law enforcement should play in arresting and holding people accountable for acts of vandalism and violence. But, if setting a couple of cars on fire is enough to merit bringing in the military, then we would have seen that after the San Francisco Giants defeated the Kansas City Royals in the 2014 World Series, when Giants fans set fires, vandalized buses and police cars, shattered windows of businesses, scrawled graffiti, and threw bottles at police. We would have seen it in February of 2018 after the Philadelphia Eagles' first Super Bowl victory set off rowdy celebrations in Philadelphia, as people who poured into the streets set at least one fire.

The reality is that California would, and likely will quite quickly, win in court for any number of reasons, starting with the fact that there was no valid reason for bringing in the Guard in the first place.

The lawsuit filed on Monday was limited to National Guard troops, but today California Governor Gavin Newsom announced an emergency motion has been filed to block the deployment of Marines. The case is filed in U.S. District Court in San Francisco, it was assigned to Clinton-appointee Judge (not Justice) Charles Breyer.

Judge Breyer won’t immediately rule on California's bid to block Trump's militarized response to the Los Angeles protests. Instead, he sets a briefing schedule with a hearing slated for Thursday. A smart friend pointed out earlier today that the schedule is fast, but allowing the parties to brief the case and create a record is wise. It will protect whatever decision Judge Breyer makes, as this matter is likely on a fast track to the Supreme Court, given the novelty and complexity of the issues it raises.

Even if what the president is doing is technically legal, as some have suggested, it is not wise. The federal presence in Los Angeles hasn’t diminished the flames; it has fanned them. A president who was concerned with public safety would be working with the governor and the mayor, not against them. That’s what Trump is doing, and it means we are right to question his motives and understand that his goals are not goals an American president should be pursuing.

This incident stands in sharp contrast to a moment in California history where the state, in 1992, requested aid from President George H.W. Bush in quelling the civil unrest following the acquittal of four white police officers who were filmed beating a Black motorist, Rodney King. California’s then-governor, Pete Wilson, and Los Angeles mayor, Tom Bradley, asked for federal assistance in restoring order. The feds intervened.

Not all aspects of the president’s plan seem to have been well thought out.

If you know someone who needs a reality check about where Trump’s true priorities are, Governor Newsom’s tweets provide some clarity. If the National Guard troops are necessary to quell violence, they must be hard at work, right? Nope. According to Newsom, approximately 300 of the first 2000 troops sent to L.A. are deployed, while the rest “are sitting, unused, in federal buildings without orders.” These troops are just pawns in Trump’s gambit to further consolidate his own power. As for Newsom, Trump suggested he should be arrested.

But, back to Los Angeles, where a community that thought this president’s “mass deportations” would involve violent criminals is now learning that it means rounding up moms and dads and little kids, because they’re the low-hanging fruit that lets ICE try to meet the quotas Trump set. Does it make anyone feel safer? That’s highly doubtful. But it does create chaos and turmoil, which may give a power-hungry president, who doesn’t want anyone to spoil his $45 million birthday parade, more ideas.

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We’re in this together,

Joyce