Trump continues to tighten his authoritarian vise grip

Dozens of federal immigration officers and around 90 National Guard troops on foot, horseback and in military vehicles raided MacArthur Park in Los Angeles on Monday. The hour-long operation disrupted a children’s day camp and left health care outreach workers in fear when troops demanded they leave at gunpoint. The park is located in a diverse, largely immigrant neighborhood, which likely made it a target for Immigration and Customs Enforcement agents. 

A day later, President Donald Trump announced at a cabinet meeting that he was considering a federal takeover of Washington, D.C. “We have tremendous power at the White House to run places where we have to,” he said to a group of reporters. “I mean, we’re looking at D.C. We’re thinking about doing it, to be honest with you. We want a capital that’s run flawlessly, and it wouldn’t be hard for us to do it.”

These most recent events are part of Trump’s escalation of rhetoric and actions targeting immigrant communities and Democratic-run cities, including his federalization of the California National Guard and deployment of active-duty Marines last month in response to protests against ICE raids in L.A. and the opening of “Alligator Alcatraz,” an immigrant detention camp in the Florida Everglades. A month after he first deployed the troops, and despite the protests quelling, they are still being used for law enforcement in and around L.A. 

It seems clear that Trump is attempting to tighten his authoritarian vise grip on the American people, and the nation’s democracy and society. These acts constitute what German legal theorist Carl Schmitt described as “a state of exception” and a permanent emergency that is fundamentally incompatible with real democracy. With the Supreme Court’s destructive decision last week to nullify the long-standing power of federal courts to issue national injunctions that protect the rights of Americans, one of democracy and civil society’s most powerful defenses against the president’s authoritarian agenda has largely been neutered. 

I recently spoke with Joseph Nunn, who serves as a counsel in the Brennan Center’s Liberty and National Security Program, and focuses on issues surrounding the domestic activities of the U.S. military, including the Insurrection Act, the Posse Comitatus Act, National Guard deployments and martial law. In our conversation, Nunn explained how Trump’s recent actions in L.A. are an almost “unprecedented” move in American history, one that constitutes a severe threat to the country’s democratic culture, civil-military relations and the rule of law.

Several weeks ago, there were protests against the mass deployment of ICE and other law enforcement in Los Angeles as part of Trump’s deportation campaign. Some of these protests turned violent. In response, and over the objections of California Gov. Newsom, a Democrat, Donald Trump federalized the National Guard and also sent in active-duty Marines. The troops are still there even though the protests have ended. Through your legal lens, how are you making sense of these events?

The way the Trump administration is using the military in Los Angeles is unprecedented. The military has been used domestically in this country, for example, for disaster relief, responding to the COVID-19 pandemic and for law enforcement. But generally, when the president has needed to use the military for law enforcement, it was done through the Insurrection Act, which is the means that Congress has provided for that purpose. What Trump is doing in Los Angeles is bypassing those norms by relying on an entirely novel interpretation of a statute, Title 10 § 12406 of the U.S. Code, combined with a somewhat dubious constitutional theory about inherent executive power to protect federal property and functions.

How are military and civilian relations supposed to function in the United States? The relationship between the military and civilian authority is central to a functioning and healthy democracy.

There is a tradition in this country that rejects military interference in civilian affairs outside of emergencies. This tradition is actually older than the United States itself; it can be traced back to medieval England and the Magna Carta and the Petition of Rights. The framers of the United States Constitution were deeply concerned about how military power could be abused in this country. For the founding generation, their defining experience of the dangers of domestic deployment of the military was the Boston Massacre and the quartering of British troops in private homes.

The founders were extraordinarily suspicious of military power, so much so that at the Constitutional Convention [in 1787], there were vigorous debates about whether to even allow for the creation of a national standing army, or instead, whether the country should rely exclusively on state militias. The founders also understood that emergencies happen, that they happen in any society, even in a republic. Shays Rebellion [started] only a year prior to the Constitutional Convention, and it very much cast a shadow over the proceedings there. Yet while the drafters of the Constitution were suspicious of military power, they also understood that the national government created by the Articles of Confederation was too weak and couldn’t respond effectively to a crisis.

So, with the Constitution, they were trying to strike a balance. The framers wanted to allow the president the flexibility to respond to a crisis, but to also impose guardrails. [They] knew that an army turned inward is a very dangerous thing, both to individual liberty and potentially to democracy. In Los Angeles, the Trump administration and federal government [jumped] straight to domestic deployment of the military under circumstances where the local authorities have not requested assistance, are not overwhelmed and have the situation under control. The military being used domestically has historically been and should continue to be a last resort.

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What legal powers and authority do the National Guard and the Marines in Los Angeles actually possess? Can they arrest people? Detain them? More?

This is a complicated question because of the unprecedented arguments the Trump administration is attempting to use to justify the federalization of California’s National Guard and the deployment of both the Guard and Marines to Los Angeles. The Posse Comitatus Act bars the federal armed forces from participating in law enforcement, except when doing so is expressly authorized by the Constitution or by Congress. The National Guard, when they are federalized, is subject to the restrictions of the Posse Comitatus Act. The Trump administration is arguing that the statute that they’ve relied on, Section 12406, is an exception to the Posse Comitatus Act. The administration is also arguing that the constitutional theory they’ve relied on, which turns on the inherent power of the executive to protect federal property and functions, is not subject to the Posse Comitatus Act. Both of those claims are extremely questionable.

The general understanding of Section 12406, and notably the understanding held by the Department of Defense for a very long time, is that it is a mobilization authority only. It allows the president to federalize the National Guard, to call it into federal service, but it does not grant any substantive authority to use the Guard. To actually deploy the National Guard for law enforcement would require invoking the Insurrection Act.

What type of legal precedent is being set by the Trump administration deploying active-duty military and federalized National Guard troops domestically? Once this has been done, it would seem that a type of authoritarian Pandora’s Box has been opened.

As a legal matter, no real precedent is being set. The fact that the government has done something in the past does not make it legal in the future. It is for the courts to decide whether the government’s behavior is lawful or not. But what we are seeing here — where federally-controlled military forces are being deployed into a non-consenting state not to enforce federal civil rights laws but instead to support routine enforcement of immigration law — is something new. Make no mistake, the deployments to Los Angeles represent a departure from how we do things in the United States, from our civic and political traditions. The job of the military is fundamentally outward-facing, its national defense. In this country, principal responsibility for the matters of civilian government has always rested with civilian authorities. That is central to the American political tradition of liberal democracy.

The National Guard and Marines who are deployed to Los Angeles to help with law enforcement and Trump’s deportation raids are real human beings. This is not the type of mission they signed up for. 

Military personnel have a type of double responsibility: They are obliged to promptly obey orders from their commanders, but they also have a moral obligation, and in some cases a legal obligation, to disobey unlawful orders. The military is really good at a lot of different things. They are good at what they’re trained, equipped and prepared to do. But soldiers are trained primarily to be soldiers, not police officers. Generally speaking, U.S. military personnel receive very little, if any, training in crowd control and civilian law enforcement. That’s not to say that none of them have that training, but most of them don’t.

In this case, it does not appear that the soldiers and Marines deployed to Los Angeles have been adequately trained or prepared for the mission they have been given. This puts them in a very difficult position. They are operating in a context where they’re interacting not with enemy soldiers on a battlefield, but instead with Americans who have constitutional rights. Anytime you ask someone to do something that they’re not trained to do, you risk them making a mistake. Here, that mistake could result in the violation of Americans’ constitutional rights. This is one of the practical reasons for minimizing military participation in domestic law enforcement, because it’s not their job.

There are also opportunity costs. The California National [Guard members] who’ve been federalized and sent to Los Angeles are doing that instead of assisting with responding to natural disasters. The Marines deployed to Los Angeles are doing that instead of whatever their normal duties are. Whenever the military is used domestically, there is an opportunity cost. Personnel, resources and attention are being pulled away from the military’s core national security responsibilities.

When most Americans hear language such as “Insurrection Act,” “martial law,” and “Posse Comitatus,” they likely think of Hollywood movies such as “The Siege” or the recent “Civil War.” What do these concepts actually mean, on the ground, for the American people in this time of worsening democracy crisis?

I would emphasize two things. First, what we are seeing in Los Angeles right now and potentially across the country is not martial law. Martial law has no established definition in U.S. law; it’s an extremely muddy concept. The term generally refers to a power that allows the military in an emergency to push aside civilian government and take its place, exercising jurisdiction over civilians. That’s very different from what we’re seeing in Los Angeles, where the military forces are there to support federal civilian authorities. Martial law has been declared before in U.S. history, most often by states, but rarely by the federal government. As a historical phenomenon, martial law is largely confined to the 90-year period between the start of the Civil War and the end of World War II.

The Supreme Court has never upheld the constitutionality of a federal declaration of martial law. Moreover, if we look at the issue given our modern understanding of the Constitution — or even, frankly, an originalist understanding of the Constitution — martial law cannot be constitutional. It is completely incompatible with the basic features of our constitutional system. Let’s not forget that placing military authority above civil authority is one of the grievances that was listed in the Declaration of Independence. Using the military to supplant the government of California or Los Angeles would undoubtedly be unlawful.

The second thing I would emphasize, and that shouldn’t be lost in the legal battle that’s unfolding in the courts, is that the presidential memorandum that purports to grant authority to participate in law enforcement to federalized National Guard forces and to active-duty armed forces does not mention Los Angeles. It does not even mention California. There is no geographic scope to it. This is completely unprecedented in American history. Nothing like that has ever happened before. Even Abraham Lincoln’s invocation of the Insurrection Act at the outset of the Civil War was confined to the states in rebellion. The last person to assert this kind of unbounded authority to use the military for law enforcement in this country was King George.