Dem
47
GOP
53
A responsible public official normally consults with government attorneys before instituting some dramatic change in policy, so as to make sure they're complying with the law. Donald Trump, on the other hand, can't be bothered with such trivialities as following the law. He cares only about two things: (1) does this action serve me and my political ends? and (2) does it hurt as many of my enemies as possible? And he's got plenty of underlings with the same goals. He believes, with good reason, that nothing he does will put himself at any personal risk, financially or politically. And he knows he's immune from criminal liability as long as he's in office. So, his attitude is "sue me, and if I lose in court, at least I'll get to break the law for a while (and often a long while) before we have to stop." For him, there's no downside, especially since Congressional Republicans are completely impotent and have demonstrated no willingness to stiffen their, um... spines.
And so here we are. We've written many times that the Posse Comitatus Act prohibits a president from using the U.S. military to execute domestic law. And yet, Trump went ahead and sent troops to Los Angeles to do just that, and has now been enjoined by a federal district court in Northern California from continuing to violate the law. U.S. District Judge Charles Breyer's permanent injunction prohibits the Trump administration from using the National Guard or any military troops to enforce civilian laws. Specifically, they cannot "execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception, as defined herein, to the Posse Comitatus Act." The judge did not order the removal of the 300 National Guard troops still left in Los Angeles and was careful to note that the order only applies to the use of the military and the National Guard in California, since that's the region his district covers. The troops can still be used to protect federal property and in other ways that are consistent with the law. The order is stayed until September 12 to give time for the inevitable appeal.
Readers may recall that this same judge granted a request for a temporary restraining order in June and found that Trump had impermissibly federalized the National Guard. In that same order, the Court denied a TRO based on the Posse Comitatus Act (PCA) because, at that time, the Court held that there was no evidence of a violation. The Ninth Circuit stayed the TRO pending appeal and held that Trump likely had the discretion under the National Guard statute to federalize the troops in spite of the governor's opposition—the Ninth Circuit did not weigh in on the PCA claims. The district court's latest order comes after a trial on the merits of only the PCA claims (not what the TRO was based on), where the court heard extensive evidence in August of violations, such as the raid in Carpinteria and a FBI/DEA action in Long Beach. Task Force 51 (as the troops were called) was specifically told that they could engage in actions that recent training slides told them were prohibited, such as security patrols, traffic control, riot control, and crowd control:
That's directly from the ruling; the judge copied and pasted the slide and highlighted the specific issues he was addressing.
The administration reacted predictably, by respectfully disagreeing with the court's order and vowing to appeal. Ha, I joke. No, they resorted to name calling and playground taunts, as per usual. Yet another spokesperson, Anna Kelly, who also seems to have attended the Trump school of petty insults along with the rest of the "communications" team, trotted out the usual over-the-top buzzwords "rogue judge," "deranged leftist lunatic," etc. to express profound disagreement with the order. Noticeably absent from the rant is any substantive defense of the administration's actions. Even in their court filings, the administration's defense boils down to "if Trump says the action is necessary to protect federal personnel, then it's a lawful exception to the PCA." The Court disagreed and dryly noted, "There were indeed protests in Los Angeles, and some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law." One could say the same about D.C., Chicago, Baltimore and all the other cities where Trump has threatened to send in the U.S. military to police American streets. Indeed, the Court found that while most of the troops have been withdrawn from Los Angeles, the injunction was necessary, given Trump's rhetoric about repeating the lawless acts in other cities. In Los Angeles, Trump "used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles. In short, Defendants violated the Posse Comitatus Act." Trump is threatening to "create a national police force with the President as its chief." So, an injunction is necessary to protect the plaintiffs here from future violations.
The opinion is 52 pages and it's well worth a read. It goes into the history of the Posse Comitatus Act and Americans' aversion to the military intruding in domestic affairs. We do not want tanks on our streets. And we don't take kindly to a president who thinks he can unilaterally declare when he can deploy the U.S. military to carry out domestic, largely political, errands. The Court cites the seminal case of Youngstown Steel, when Harry S. Truman tried to claim expansive presidential power as Commander-in-Chief to seize the steel mills. The Court rejected that power grab. Likewise, Judge Breyer holds that Trump does not get to declare new, unwritten exceptions to the PCA. This obviously has implications for the use of troops in other U.S. cities, even if the decision does not technically bind any other court. The reasoning is sound and well-supported and, as conciliatory as this Supreme Court has been to Trump, this might be a bridge too far even for them. (L)