President Trump is close to making a dangerous end run around the legal boundaries surrounding use of the U.S. military to police American cities.
In 1992, Los Angeles was on fire, with people dying, when President H.W. Bush federalized the National Guard, invoked the Insurrection Act and sent active-duty Marines to help California Gov. Pete Wilson quell the violence of the Rodney King riots — at Wilson’s request.
In stark contrast, despite claiming that there are “violent, insurrectionist mobs” here in Los Angeles, and despite having preemptively federalized National Guard troops over the weekend (now numbering approximately 4,000) and ordering them to Los Angeles, Trump has not invoked the Insurrection Act. And unlike Bush in 1992, Trump hasn’t given these deployed troops the law enforcement authorities needed in such a situation — powers they are legally barred from exercising currently — despite having sent 700 active-duty Marines to ostensibly protect federal assets from these claimed mobs.
This means that America is witnessing federal troops deployed to our nation’s second largest city to keep law and order without the requisite legal authorities, and without the governor’s request or support.
Indeed, if the National Guard had remained under the command of the California governor, guard troops would have had law enforcement authority, as assisting and conducting law enforcement is one of their missions when serving their governor and state. However, now that they are federalized, they (along with the Marines deployed to Los Angeles) do not have law enforcement power. Hence, they cannot pursue real law and order through policing action.
This situation is therefore extraordinary, and implicates a historic fear of the president exploiting the military to suppress civil liberties and go after political opponents.
The active federal American military, going back to our nation’s inception, has been viewed as something to fear if deployed on our city streets. The founding fathers and generations of Americans since the Declaration of Independence have viewed the use of federal troops to police American cities as a tool of tyranny — just think of the Red Coats ransacking American colonists’ homes. This aversion to using the military to conduct domestic law enforcement is statutorily found in the Reconstruction-era Posse Comitatus Act, a federal law that strictly prohibits using the federal military (including federalized National Guard troops) to police city streets or otherwise engage in law enforcement activities.
There are legal exceptions to bypass this prohibition, of course. These exceptions recognize that the president may need, in time of invasion, rebellion and unlawful assemblies that impede federal law, flexible legal and practical tools, including military assets. The Insurrection Act is the statutory exception historically used in such violent emergencies, such as 1992 during the L.A. riots when it was last invoked, to provide legal authority for federal troops to help local law enforcement deal with civil unrest.
Yet it’s not been invoked here. It is highly unusual that the president has repeatedly outlined a need for military forces in Los Angeles — despite the fact that most of the anti-immigration protests have been peaceful — yet has not given those forces the legal authorities that they need to actually deal with said need.
Practically speaking, Trump is putting these troops in a dangerous situation. What are the Marine’s and federalized National Guard’s command, control and coordination systems, particularly with the Los Angeles Police Department and other local law enforcement who are fully trained to do this job? What are their rules for use of force — are they the military’s Standing Rules for Use of Force that specify they are to be used in law enforcement situations, despite this deployed force not having law enforcement authority? Are they properly trained and equipped for this job of protecting federal assets, given that Marines are trained in crowd control in combat situations, not domestic policing under the Fourth, Fifth and Sixth Amendments to the Constitution? What force are they prepared to use, and how, in response to protestors potentially becoming violent?
Furthermore, what can these troops actually do to protect federal property and people? According to federal case law, because military forces working for the president cannot engage in law enforcement activities, they cannot engage in arrests, searches or seizures. Yet if there are actually violent insurrectionist mobs in Los Angeles — I was at the protests, I didn’t see anything of the kind — wouldn’t we want them arrested?
The deployment of troops instead has been unnecessary, wasteful, distracting and potentially harmful to both deployed troops and the local and state law enforcement personnel who are patrolling the streets and dealing with protestors. It adds command, control and coordination complexity to the mix, and takes away a resource from the governor (i.e., his own National Guard units under his command that would have law enforcement power).
Perhaps Trump is hoping violence erupts so he can declare martial law, or that so he can order troops to arrest people without resorting to the Insurrection Act, perhaps even claiming inherent constitutional power to enforce the law. This potential end run around the few legal safeguards established to keep the use of the military on our city streets limited to truly emergency and extraordinary circumstances is more than alarming, and must be loudly condemned.
Rachel E. VanLandingham, Lt. Col., USAF (ret.), is Irwin R. Buchalter Professor of Law at Southwestern Law School and president emerita and current director of the National Institute of Military Justice.
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