Trump is Playing with Fire in Los Angeles

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On CNN, former Department of Homeland Security official, and conservative politician, Ken Cuccinelli echoed the Trump Administration talking points to justify National Guard deployment in Los Angeles. Normally, the Posse Comitatus Act, 18 U.S.C. Sec. § 1385 (1878), would not allow the federalized military to engage in ordinary law enforcement activities. Indeed, it makes use of the military for domestic law enforcement a crime. One major exception, however, is the Insurrection Act of 1807, 10 U.S.C. §§ 251-255. That Act would need to be invoked to support Defense Secretary Pete Hegseth's outrageous suggestion that the Marines could be called in to supplement the Guard's presence.

But for now President Trump is not using the Insurrection Act to deploy the Guard troops. Instead, he has federalized the National Guard under 10 U.S.C. § 12406. This provision theoretically allows the National Guard to execute federal laws. Cuccinelli said that Guard enforcement implements our immigration laws. But President Trump has repeatedly asserted that he can bypass the Constitution and laws in exigent circumstances. This seems inconsistent with Cuccinelli’s emphasis on the rule of law. Trump, however, also crucially took an Oath to follow the Constitution. So must the rule of law be followed or not?

The answer should be yes, but Trump's actions are unlawful and/or outrageous in at least five ways.

First, Trump relies on the precedent of President Lincoln's actions in the face of extreme exigencies, but no Civil War is occurring.

Second, the National Guard’s action go beyond executing federal laws. The Guard is infringing the First Amendment rights of protesters, detaining immigrants when they appear for appointments with ICE, using flash bombs and other tools that appear disproportionate to any genuine threat. These Guard actions are illegal under federal law, or they are at least highly questionable. These actions have catalyzed the protests, not calmed them.

Third, Trump is also violating at least the spirit of the 10th Amendment and federalism — a bedrock conservative principle. Neither the Governor, LA Mayor, nor police chief have asked for the Guard so he has usurped their power. On the contrary, they have asked the president to return control over the federalized Guard to the Governor. Trump's actions are federal authoritarianism and illegal, not conservatism.

Fourth, the U.S. government appears ready to unlawfully call in 700 Marines to “help” the situation. That would clearly violate the Posse Comitatus Act absent an invocation of the Insurrection Act, which plainly does not apply. Moreover, calling in the Marines would be virtually unprecedented and dangerous, pitting the American military against the American people.

Fifth and finally, this is vicious politics. Trump is playing to his anti-immigrant base. And he is taking on a political rival, Governor Newsom. One can only hope that Trump’s actions help create a national backlash. And that California succeeds in its lawsuit against Trump.

--Mark Kende