As Chicago welcomes federal forces, it’s crucial to highlight last week’s U.S. District Court ruling, which stated that President Trump unlawfully deployed the National Guard in Los Angeles back in June. A national security expert’s amicus brief supported California’s position, asserting that the president lacks the authority to send federal troops for policing in American cities. This issue has become a focal point for the ongoing scrutiny of the government’s actions in urban settings.
Judge Charles Breyer addressed the case of Newsom v. Trump, emphasizing that the use of federal forces violated an 1878 law that restricts their use for law enforcement purposes. He noted that evidence presented during the trial showed the defendants systematically utilized armed soldiers, resulting in military presence which included established perimeters and crowd control efforts in and around Los Angeles. “In summary, the defendant violated the Posse Comitatus Act,” Breyer stated.
The administration argued that the lawsuit was an exception for community safety, claiming it was acting to protect federal assets and personnel. They also referenced a federal law permitting military deployment in the event of civil law threats. Breyer, however, dismissed these claims, stating that local officials needed to prove they were “unable or unwilling” to maintain safety—a threshold the government failed to meet.
Moreover, Breyer criticized the administration’s arguments, suggesting they were baseless. He stated, “the court will not accept the defendant’s invitation to create a new exception to the Posse Comitatus Act which would undermine the law itself.”
This is the first enduring interpretation of the Posse Comitatus law by federal judges, shedding light on areas that have long seemed ambiguous and difficult to address.
Breyer highlighted that the federal government’s actions contradicted standard training materials, which outline twelve prohibitions related to Posse Comitatus. He emphasized that the government cannot selectively enforce rules based on convenience. Breyer described the administration’s actions as part of a broader and systematic effort to manipulate federal law using military assets.
Using the National Guard for policing tasks blurs the essential distinction between military operations and civilian law enforcement. The framers of the Constitution expressed clear concerns about this kind of misuse of authority, evident in provisions such as the Third Amendment, which restricts military quartering in homes.
Typically, federal courts have shown significant deference to the president’s role as commander-in-chief. In the realm of foreign warfare, this makes sense. However, using federal forces on U.S. soil compels the courts to step in, safeguarding civil rights and remembering the framers’ fears of a potential military dictatorship. The threat arises when the military is employed to manage political protests or detain citizens exercising constitutional rights. Military personnel should be defending the Constitution rather than infringing on the rights of Americans.
Additionally, using the military for law enforcement is a misguided policy. Military forces are trained to neutralize threats, not to uphold civil rights or manage crime scene evidence. Their primary focus should be on defending the nation against external threats, not directing force against citizens who might not have legal expertise.
Exceptions to this practice should be limited to extreme circumstances of rebellion, as outlined by the Rebellion Act. Even in such scenarios, Breyer clarified that there are restrictions on federal power. The Rebellion Act offers a perceived exception to Posse Comitatus but sets crucial boundaries on presidential authority, requiring that there has been an “impossible or unwilling” action by local or state officials.
Since June, the Trump administration has deployed thousands of troops in two cities for various uses, hinting at further deployments across Democratic strongholds. Recently, the president even issued an executive order to establish special military units to address what he termed “civil disabilities.” The role of military police appears to be shifting from a temporary response to a more permanent governance strategy.
Breyer’s ruling in Newsom v. Trump outlines the illegality of the government’s use of federal forces, primarily aimed at quelling dissent and opposition. Even if the Ninth Circuit decides to appeal this, this decision underscores the need for clarity in this area of law and should be respected by other federal courts.
Claire Finkelstein serves as a law professor at the University of Pennsylvania and is involved with the Center for Ethics and the Rule of Law.
Mitt Regan directs the National Security Center and teaches law at Georgetown Law, focusing on ethics and security.
Brenner Fissel is a law professor at Villanova University and serves as vice-president of the National Institute of Military Justice.
