How to reconcile Article II and the Posse Comitatus Act with respect to President Trump's federalization of California National Guard troops and deployment of Marines in and around Los Angeles.
Nice analysis except that the 9th Circuit panel seems to have ruled that the President can conscript the CA National Guard to run interference for ICE and other Feds to keep the public at bay while the Feds hammer the civilian population with onerous policing in the name of "federal law enforcement." Somehow the fact that the Congress adopted the Posse Comitatus Act as a response to National Guard and Federal troops killing striking railway workers in the Railroad Strike of 1877 has gone in the ash heap like everything else in Trump-time.
Thank you, Professor. I was surprised that your discussion at the end of “when necessary” didn’t place more weight on the question (mentioned in the DoD policy you quoted) of whether local law enforcement is able and willing to protect federal property. That seems a crucial point in the current LA situation.
I think some of these comments overread what the 9th Circuit has done and said. It is never been open to question that the Federal Government has the right (and perhaps even the duty) to "protect federal property." That is a daily occurrence in this country at all federal buildings ---including the National Capital---and exists whether or not it is "necessary". What is at issue here is whether that power extends to police activities against citizens ( and immigrants) in support of "regular" federal law enforcement authorities if you can call the ICE thugs "regular". That issue is not yet before the 9th Circuit. It is before Judge Breyer today and I would not be surprised to see him find that even if Trump can call in the National Guard, he cannot order them to engage is law enforcement activities that go beyond the protection of Federal Property
I agree that the "when necessary" language renders this largely moot, but on the assumption that others might come to different conclusions . . .
I do wonder if the inherently coercive effect of the presence of armed members of the military alongside law enforcement creates a more-than-incidental involvement in law enforcement functions. At what point can we say that the involvement of the military—including federalized National Guard—has law enforcement either as its dominant or clearly-intended function rather than an incidental byproduct of otherwise-legitimate activity? And would this then cross the line of whatever test balances one authority against another?
All these technical legal arguments. Trump doesn't care. He does what he wants regardless of the Constitution while the courts dither. And will claim that he is carrying out his constitutional executive function and is not bound by laws passed by the legislation.
What I find surprising is that the use of the military (active or National Guard) is so readily accepted generally.
Should it not be an Ultima Ratio if all other law enforcement resources fail?
So in this case why have there not been additional Federal Agents deployed like from the FBI. You are gonna tell me that all federal agents/officers in LA and the surrounding area would be overwhelmed with these protests?*
Ofc, the reason they have not been deployed is because the white house does not want it, but then why is it not made a requirement by law (and the interpretation thereof) given the clear mandate from Posse Comitatus that generally the military is not to be used domestically?
Btw. under German constitutional law the military is only allowed to be used (except for in natural disaster situations) when the existence of a state or the federal government is imminently threatened and all police resources are exhausted. Just a tiny comparative law reference a long the way😅
* Arguing that federal agents from other areas could not be temporarily deployed to LA because that would inhibt the federal government's ability to enforce the law elsewhere does not work here given the nature of these primarily peaceful protest, I argue, because it's not the marines job to deploy domestically either, i.e. it would inhibit there ability to fulfill their regular duties.
Do the federalized National Guard and the Marines (or any other branch of the military) have the same legal authorities and restrictions, with regard to the topic of this article, or is there some distinction between them?
Still unclear to this non-lawyer but a lot of daylight provided, thanks Professor Vladeck !
Seems like lots of daylight for the KJO brigade (i.e. the ICE secret police or if they are police at all) to drive a truck through the exceptions !
I mean the 9th Circuit actually ruled against what is the self-evident truth: local law enforcement in LA had the situation in hand, federal locations were not threatened, though ‘purported’ ICE kidnappers faced aggressive crowds which were distinctly non-violent in the face of ICE-rogue-so-called-agents blatantly illegal (for normal law enforcement) actions, they were pulling people - citizens , legal residents or anyone else they could racially profile and disappearing them; and the state’s governor, the city’s Mayor, the Chief of the LAPD, all reiterated multiple times, the activation of the National Guard was not warranted and they’re said publicly, bringing in US marines was most certainly ill-advised, and violating the sovereignty of the state government.
Thanks for this and for the prior one on war powers. What do you think of the idea of "protecting federal agents (ie ICE) when they are in fact acting illegally--no warrants or ignoring the documents the migrant does have
I hope Monday you will unpack the 9th Circuit panel's decision on the national guard in LA. I was glad to see that they didn't go as far as to decide that the President's definition of "rebellion" etc was not justiciable, but their reasoning on the need to act "through" a governor felt pretty flim flam. Do you think this case will ever get as far as a jury trial so a trier of FACT can decide whether what happened in LA rose to the level needed to call out the guard. Or is an appellate court's opinion (or that of the Extremes) going to be the benchmark?
Nice analysis except that the 9th Circuit panel seems to have ruled that the President can conscript the CA National Guard to run interference for ICE and other Feds to keep the public at bay while the Feds hammer the civilian population with onerous policing in the name of "federal law enforcement." Somehow the fact that the Congress adopted the Posse Comitatus Act as a response to National Guard and Federal troops killing striking railway workers in the Railroad Strike of 1877 has gone in the ash heap like everything else in Trump-time.
I used to think they weren't poisoning our food to make us sick... "𝙗𝙪𝙩" this changed everything...
https://t.co/QRL3vcM3nr
Thank you, Professor. I was surprised that your discussion at the end of “when necessary” didn’t place more weight on the question (mentioned in the DoD policy you quoted) of whether local law enforcement is able and willing to protect federal property. That seems a crucial point in the current LA situation.
I think some of these comments overread what the 9th Circuit has done and said. It is never been open to question that the Federal Government has the right (and perhaps even the duty) to "protect federal property." That is a daily occurrence in this country at all federal buildings ---including the National Capital---and exists whether or not it is "necessary". What is at issue here is whether that power extends to police activities against citizens ( and immigrants) in support of "regular" federal law enforcement authorities if you can call the ICE thugs "regular". That issue is not yet before the 9th Circuit. It is before Judge Breyer today and I would not be surprised to see him find that even if Trump can call in the National Guard, he cannot order them to engage is law enforcement activities that go beyond the protection of Federal Property
I used to think they weren't poisoning our food to make us sick... "𝙗𝙪𝙩" this changed everything...
https://t.co/QRL3vcM3nr
I agree that the "when necessary" language renders this largely moot, but on the assumption that others might come to different conclusions . . .
I do wonder if the inherently coercive effect of the presence of armed members of the military alongside law enforcement creates a more-than-incidental involvement in law enforcement functions. At what point can we say that the involvement of the military—including federalized National Guard—has law enforcement either as its dominant or clearly-intended function rather than an incidental byproduct of otherwise-legitimate activity? And would this then cross the line of whatever test balances one authority against another?
All these technical legal arguments. Trump doesn't care. He does what he wants regardless of the Constitution while the courts dither. And will claim that he is carrying out his constitutional executive function and is not bound by laws passed by the legislation.
What I find surprising is that the use of the military (active or National Guard) is so readily accepted generally.
Should it not be an Ultima Ratio if all other law enforcement resources fail?
So in this case why have there not been additional Federal Agents deployed like from the FBI. You are gonna tell me that all federal agents/officers in LA and the surrounding area would be overwhelmed with these protests?*
Ofc, the reason they have not been deployed is because the white house does not want it, but then why is it not made a requirement by law (and the interpretation thereof) given the clear mandate from Posse Comitatus that generally the military is not to be used domestically?
Btw. under German constitutional law the military is only allowed to be used (except for in natural disaster situations) when the existence of a state or the federal government is imminently threatened and all police resources are exhausted. Just a tiny comparative law reference a long the way😅
* Arguing that federal agents from other areas could not be temporarily deployed to LA because that would inhibt the federal government's ability to enforce the law elsewhere does not work here given the nature of these primarily peaceful protest, I argue, because it's not the marines job to deploy domestically either, i.e. it would inhibit there ability to fulfill their regular duties.
Do the federalized National Guard and the Marines (or any other branch of the military) have the same legal authorities and restrictions, with regard to the topic of this article, or is there some distinction between them?
I have called on Iran for regime change. They can help us. Trump needs to go. https://hotbuttons.substack.com/p/iran-2-weeks?r=3m1bs
Still unclear to this non-lawyer but a lot of daylight provided, thanks Professor Vladeck !
Seems like lots of daylight for the KJO brigade (i.e. the ICE secret police or if they are police at all) to drive a truck through the exceptions !
I mean the 9th Circuit actually ruled against what is the self-evident truth: local law enforcement in LA had the situation in hand, federal locations were not threatened, though ‘purported’ ICE kidnappers faced aggressive crowds which were distinctly non-violent in the face of ICE-rogue-so-called-agents blatantly illegal (for normal law enforcement) actions, they were pulling people - citizens , legal residents or anyone else they could racially profile and disappearing them; and the state’s governor, the city’s Mayor, the Chief of the LAPD, all reiterated multiple times, the activation of the National Guard was not warranted and they’re said publicly, bringing in US marines was most certainly ill-advised, and violating the sovereignty of the state government.
Thanks for this and for the prior one on war powers. What do you think of the idea of "protecting federal agents (ie ICE) when they are in fact acting illegally--no warrants or ignoring the documents the migrant does have
I hope Monday you will unpack the 9th Circuit panel's decision on the national guard in LA. I was glad to see that they didn't go as far as to decide that the President's definition of "rebellion" etc was not justiciable, but their reasoning on the need to act "through" a governor felt pretty flim flam. Do you think this case will ever get as far as a jury trial so a trier of FACT can decide whether what happened in LA rose to the level needed to call out the guard. Or is an appellate court's opinion (or that of the Extremes) going to be the benchmark?
Thanks for the clarity!
I needed it.