LAW & CRIME
June 14, 2025
President Donald Trump’s deployment of nearly 4,000 National Guard troops and 700 U.S.
Marines to Los Angeles has exceeded the legal limits of how the
military can be used to enforce domestic laws in American cities.
The Governor of California, Gavin Newsom, intends to prove
that in a court of law. The state has filed a lawsuit alleging, “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,” says the complaint, which was filed in federal court.
U.S. District Judge Charles R. Breyer agreed. Breyer, a Bill
Clinton appointee who also happens to be the brother of retired Supreme Court
Justice Stephen Breyer, declared that 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 control of the
National Guard returned to Newsom. The order was supposed to take effect Friday
at noon, but the 9th U.S. Circuit Court granted an administrative stay late Thursday night,
pausing — at least temporarily — Breyer’s order.
What this lawsuit comes down to is the Insurrection Act versus the Posse Comitatus Act. One act is more than 200 years old and
the other, nearly a century and a half.
The Insurrection Act, passed in 1807, authorizes the
president to deploy military forces inside the United States to suppress
rebellion, invasion or to enforce federal law in certain situations. The Posse
Comitatus Act, passed in 1878, was put in place to ensure that the federal
military would not be used to intervene in the establishment of Jim Crow laws
in the former Confederacy after Reconstruction. The overarching principle of
the Act is to prevent the military from interfering in the affairs of civilian
government.
When it comes to the Insurrection Act, troops can be
deployed under several sections of the law. The statute’s requirements are not
clearly defined, leaving some aspects of the law to the discretion of the
president. One provision provides that the president can send in troops at a
governor’s request. A second provision provides the president with the
authority to deploy troops to “enforce the laws” of the United States or to
“suppress rebellion” whenever unlawful obstructions make it difficult to
enforce federal law — even against the state’s wishes.
A third provision provides 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 following Brown v. Board of Education — the president can
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 juxtapose the Insurrection Act with the Posse
Comitatus Act. The Posse Comitatus Act consists of just one sentence: “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 doing
so is expressly authorized by a statute or the Constitution. Supposedly that
statute would be the Insurrection Act — but clearly there is no insurrection or
rebellion, and Trump has said as much.
Here is Trump’s rationale, straight 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 provides that the President may active 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 with regular forces “to execute the laws of the United
States.” None of those circumstances exist, and even if one did, Section 12046
concludes with, “Orders for these purposes shall be issued through the
governors of the States …
The White House is violating, in the most blatant way, the
United State Constitution. But why? The New York Times suggests, after talking
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 inflame the tensions in L.A.,
potentially leading to a vicious cycle in which Trump calls up even more troops
or broadens their mission.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
This is an opinion piece. The views expressed in this
article are those of just the author.
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