Washington – The movement of President Donald Trump to send troops and marines of the National Guard to Los Angeles in the midst of disturbances for his immigration policies has given a new weight to a persistent question: How far can a president get when using the military to suffocate domestic disturbances?
For now, the Army has a limited role in Los Angeles, focused on protecting federal buildings and activities, but that has not stopped the democratic leaders of California, including Governor Gavin Newsom, to vehemently object to Trump’s actions.
Trump has not taken the most drastic step to invoke the insurrection law, the name given to a series of legal provisions that allow the president, in certain circumstances, to enlist the military to carry out activities of application of the civil law.
But Elizabeth Goiten, an expert in national security at the Brennan Justice Center, said that the June 7 memorandum that Trump issued authorizing military participation in support of the application of immigration does not refer to Los Angeles, which means that it applies throughout the country.
“That is just a red alert,” he said. “If we have the military deployed preventively throughout the country to effectively monitor protests, that is the distinctive seal of the authoritarian government.”
Although military role can initially limit to a protective function, Goiten said that it could be easily expanded in certain situations to include the use of force and detention of protesters, even without invoking the insurrection law. He pointed out the response of federal agencies under Trump during the protests in Portland and Washington, DC, in 2020.
Ilan Wurman, professor at the Law School of the University of Minnesota, said that until this point, Trump has acted within the existing precedents that allow the president to use the military to help with the application of the Federal Law.
“The federalization of the National Guard, using regular forces to restore order, is in my opinion, is in my opinion within the range of previous precedents,” he said.
But, Wurman added, any attempt to invoke the insurrection law “would be more problematic.”
When is it legal for the president to use the military to support the police?
In general, the use of the military to carry out activities to apply broad law is prohibited under another law, the POSSE Committee Law of 1878. But that statute contains many lagoons, of which the insurrection law is one.
The POSSE Comitatus Law was promulgated at the end of the period of reconstruction after the civil war, erecting a new barrier against military intervention in the south as it advanced towards the era of Jim Crow.
The last time the insurrection law was invoked was during the riots of Los Angeles of 1992. President George Hw Bush acted at the request of Tom Bradley, the Democratic Mayor of Los Angeles, and Pete Wilson, the Republican Governor of the State. Previously, the law was used to disaggregate schools in the 1950s and 1960s amid the opposition of state and local leaders in the south.
When calling the National Guard, Trump invoked a different law that allows the president to do so when there is an invasion or danger of invasion, a rebellion or danger of rebellion, or when “the president cannot with regular forces to execute the laws of the United States.”
The law establishes that the orders “will be issued through the governors of the states”, which has not happened in this case, since Newsom firmly opposes Trump’s move. California has submitted a lawsuit that quotes the frankness of Newsom’s role by virtue of that provision, as well as the broader statements that Trump is violating the sovereignty of California, among other things.
“There is no invasion. There is no rebellion,” said California Rob Bronta attorney on Monday.
Attorney General Pam Bondi said that Trump’s actions completely supported.
“We are going to enforce the law regardless of what they do,” he said, referring to Newsom in a Fox News interview on Monday. “Look around. It looks like a Third World country.”
Chris Mirasola, professor at the Law Center at the University of Houston, said the impact of Trump’s current plan could be limited by practical considerations, including the number of available military personnel and the cost of paying the National Guard troops on active duty.
“This ends up being extremely expensive very fast,” he added. The cost of Los Angeles deployment is only approximately $ 134 million, a defense department official said on Tuesday.
Military personnel are likely to also have little training on how to address a domestic protest.
“This is not in its normal mission set. There is always a risk of climbing,” which would only be more pronounced if the insurrection law was used, Mirasola added.
What is the act of insurrection different?
If the president invokes the insurrection law, the troops would not be limited to protecting the federal property and personnel. Instead, they could have a much more active role in the streets, with a greater possibility of meeting civilians.
While troops may not be able to carry out all the functions of federal law agents, such as the realization of immigration raids, it could help, Mirasola, he said.
There are also questions about whether the Judiciary would intervene whether Trump tried to use the insurrection law, or even who would have a legal position to demand to stop Trump.
The litigation in that scenario could reflect a legal fight that has already been developed on the efforts of the Trump administration to use a war law, the alien enemies law, to quickly deport certain immigrants without providing them with due process.
The Supreme Court said that due process is required, that detainees have an adequate opportunity to raise legal objections before a federal judge. But the court also said that such demands must be submitted through habeas corpus claims of affected persons, not under a federal law called Administrative Procedure Law.
Although Trump and his allies have referred to protesters in Los Angeles as “insurrectionists”, there is no plan at the time to invoke the insurrection law, said a White House official to NBC News.
Speaking on Sunday about whether I would try to use the law, Trump said there was currently no reason for but he does not rule it out in the future.
“It depends on whether or not there is an insurrection,” he said.
