The Posse Comitatus Trial

Our Republic reaches a crossroads as the power of the White House to militarize our cities comes under judiciary scrutiny.

Photo: Jim Vondruska / Getty Images

A long anticipated showdown begins today in a California federal courtroom.

Gov. Gavin Newsom of California has challenged the right of President Trump to deploy federal troops over ICE protests in Los Angeles. The White House argues that the deployment is proper to help quell rebellion against the federal government.

At issue is the Posse Comitatus Act. I’ve written about this at length before, but in sum, the Act criminalizes the use of federal armed forces to conduct civilian law enforcement. Newsom argues that there was no legal exception to Posse Comitatus here, and therefore their deployment is illegal. The White House claims the troops aren’t conducting law enforcement activities, and that no civil suit enforcement mechanism is legally authorized.

Perhaps in anticipation of that argument, Newsom also argues that Trump violated the Tenth Amendment, which reserves to the states all powers not expressly given to the federal government or prohibited to the States. Policing is usually considered a core use of state power. He also argues that the White House violated the Administrative Procedure Act (APA) because the Secretary of Defense neither consulted Newsom nor issued the orders to deploy the National Guard through him, as required by statute.

We have a clearer sense than earlier of the parties’ precise legal arguments going into this three-day bench trial. I’ll walk through them and discuss various strengths and vulnerabilities. Then I’ll zoom out and lay out the national stakes and why history is a very strange guide for the federal and state arguments at issue in this case.

The roots of Posse Comitatus and the echoes of history

Most of our legal traditions trace back to Ye Olde England, and “posse comitatus” is no exception. As Donald Kettl, professor emeritus of the University of Maryland, writes,

In the ninth century, Alfred, king of the Anglo-Saxons, discovered the value of federalism. He broke his realm up into shires (we’d know them as counties) and, to keep order, he appointed sheriffs. To enforce the law, the sheriffs had the power to organize posses of citizens. People who didn’t agree to serve lost their land.

That led to the policy of posse comitatus, translated as “the power of the county.” Sheriffs could use the tool not only to track down criminals but to put down riots, which created a long tradition that has now bled onto the streets of Los Angeles in the dispute between President Donald Trump and California Gov. Gavin Newsom.

In the U.S, Congress passed the Posse Comitatus Act in 1878 as a nod to the former Confederate states, which had disputed the national presidential election. To break the electoral deadlock and, as a compromise, allow the Republican nominee Rutherford Hayes to win the White House, the Southern states demanded that federal troops be withdrawn from the former Confederacy and that Reconstruction come to an end. Kettl notes,

Republican Rutherford B. Hayes was up against Samuel J. Tilden, a New York Democrat, who won a majority of the popular vote but came up just one electoral vote shy of winning the White House. The Democrats were furious, convinced that the Republicans had stolen the election. Federal troops were still stationed in the South as part of Reconstruction, and Democrats were sure that the Republican administration of Ulysses S. Grant had used federal troops to screen out Democratic voters.

It’s hard to read the above and not feel the shudders of history as federal power in the wrong hands today—here, the Trump Justice Department—threatens to interfere in state-run federal elections. (More on that in my piece tomorrow in The Big Picture—make sure you’re subscribed to receive it in your inbox!)

The Posse Comitatus Act was a key part of that electoral compromise. It was just one sentence long, but it ushered in a dark era of racial terror across the South:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

The Act was devastating to recently freed African Americans because, as the Brennan Center for Justice explains, this basically meant that the federal military could no longer participate in civilian law enforcement unless expressly authorized by law. In an era where the Southern states sought to restrict the rights of its formerly enslaved citizens and maintain an environment of white supremacy, racial terror and subjugation, the removal of federal authorities brought misery to millions and caused a mass migration of Blacks out of the Jim Crow South.

There is a deeply ironic historical twist at work today, where the forces of subjugation are now at the federal level while Blue State governments struggle to keep them at bay. The Posse Comitatus Act shoe is now on the other foot.

In response to the ICE protests in Los Angeles, which sought to bring attention to the deep racial injustices being perpetrated by federal agents, President Trump federalized and deployed the National Guard and U.S. Marines to guard ICE detention centers and support ICE operations. At one point, the military even staged a grotesque show of force at MacArthur Park in Los Angeles to intimidate the local community and make its presence known.

California quickly challenged Trump’s orders and obtained a temporary restraining order before the Ninth Circuit put that on hold. But the bigger question over whether the initial order was legal under the Posse Comitatus Act and other laws and constitutional amendments remained unanswered.

That’s what the bench trial, which begins today in a California federal court, will seek to answer.

The Posse Comitatus Act forbids federal police action, says California

California Attorney General Rob Bonta (who in full disclosure is a former work colleague at the Keker & Van Nest law firm) has come out swinging. He declared in a statement,

Two months ago, the federal government deployed military troops to the streets of Los Angeles for the purposes of political theater and public intimidation. This dangerous move has no precedent in American history, erodes trust between the American military and the public, and pulls our servicemembers away from their vital role in fighting wildfires and tackling the fentanyl epidemic.

Today, 300 federalized California National Guard members remain tools in the President’s game, and the Trump Administration seeks to advance the argument that there should be no limits on what federal troops can do. But that is not what our law allows. We begin trial with the facts and the law on our side—and we look forward to making our case in court.

California argues that the Trump White House violated the Posse Comitatus Act in three ways.

1. Making direct, active use of military personnel for armed perimeter support and blockades, apprehension and detention of civilians, and participating in some three out of every four immigration raids in the LA region;

2. Ordering federalized National Guard soldiers to participate in law enforcement operations; and

3. Using the California National Guard to prevent Californians’ freedom of movement while being forced to act as a “deterrent.”

But we weren’t conducting police action, claim the feds

The judge is holding a bench trial, rather than a hearing on just the legal arguments, because there is a core dispute of fact over which witness testimony and other evidence will need to shed light. The primary question is over what the National Guard and U.S. Marines actually have been doing since being deployed to Los Angeles.

What’s the federal government’s side of the story? As NBC News reported,

The Trump administration argued the troops were needed to protect federal buildings and personnel in Los Angeles, which has been a battleground in the federal government’s aggressive immigration strategy.

Further, Ernesto Santacruz Jr., the DHS field office director for Los Angeles, stated that federal troops were needed because local law enforcement had been slow to respond to crowds outside federal buildings protesting immigration arrests. “The presence of the National Guard and Marines has played an essential role in protecting federal property and personnel from the violent mobs,” Santacruz said.

That might pass muster if their actions were limited to protecting federal property. But the troops did more than that, argues California. As NBC News notes, federal agents have been detaining immigrants without legal status, grabbing them from the streets, from Home Depots, car washes, bus stops and farms. Some U.S. citizens have also been detained.

In many of these raids, there were national troops present and assisting. How is that not an improper use of the federal military as a policing force?

Even if there was police action, it’s allowed, argues the White House

Trump’s attorneys argue that the National Guard was federalized and deployed under a little-known and rarely used law, codified at Title 10 Section 12406(3). That law permits the federalization of the National Guard in three specific cases:

1. If the US is being invaded or faces danger of invasion;

2. If there is a rebellion or danger of rebellion; or

3. If the president is unable “with the regular forces to execute the laws of the United States.”

The federal government attorneys argued that, as a matter of law, Trump was within his rights to federalize and deploy the California National Guard and that the case should be dismissed. But the judge hearing the case, Judge Charles Breyer of the Northern District of California (who is the brother of former Supreme Court Justice Stephen Breyer), wasn’t buying it. He found the protests in Los Angeles “fall far short of ‘rebellion’” and declared in an order setting the bench trial, “Next week’s trial is not cancelled.”

Further, as California points out, under the very terms of the law the Trump White House is trying to rely on, it didn’t follow the required procedures. Specifically, Secretary of Defense Hegseth and the Department of Defense were required by law to issue orders federalizing the National Guard through Governor Newsom. That Section clearly states,

Orders for these purposes shall be issued through the governors of the State…

But Newsom had neither consented to the actions nor was consulted on any troop deployment. Because the APA allows courts to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” that is “contrary to constitutional right (or) power,” or that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” the Court, California argues, can undo the illegal order entirely, declare it null and void, and order the remaining troops to depart.

The national stakes of the case are high

Only some 300 National Guard soldiers remain in Los Angeles. They are currently stationed at the Joint Forces Training Base in Los Alamitos. Newsom argues that they are “without a clear mission, direction, or a timeline for returning to their communities.” Sending them home would change nothing on the ground, where there haven’t been mass protests since June.

But the outcome of the case could carry far larger constitutional ramifications. By the time it reaches SCOTUS, the matter could well define the limits, or lack thereof, for the use of federal troops in civilian law enforcement.

Just today, there are new reports that Trump will “take over” the D.C. police and deploy the National Guard to the streets of Washington D.C. in response to alleged “high crime levels.” There is no evidence that crime levels in D.C. are on the rise (as Hillary Clinton immediately pointed out, they are at 30–year low). This despite a much publicized carjacking and supposed assault in D.C., allegedly perpetrated by a juvenile boy and girl from Maryland on a well known DOGE coder known simply as “Big Balls.” (Yes, this is the absurd timeline we are stuck in, and that sure sounds like a false flag op if it’s not just wild coincidence.)

Again, I should emphasize that there are already plenty of police within D.C, and neither the mayor of D.C. nor its police chief has asked for any federal help with crime control. Nor is the National Guard trained to conduct crime control as Trump wants them to.

Still, Trump still seeks to maintain a troop presence, in part as a distraction from the Epstein files scandal, but also in furtherance of his goal of establishing a permanent police state, starting apparently with D.C.

But deploying the military to conduct basic police matters could backfire badly. It fundamentally misunderstands how military officers and soldiers see their mission and purpose, which is to defend the national security of the country against foreign enemies, not to be local cops. The move will likely not put Trump and Secretary Hegseth in better standing with the troops or broader military leadership.

The move mirrors what the Justice Department has done with the FBI and what DHS has done even within ICE itself. Those agencies have reassigned officers primarily to civilian immigration enforcement, moving them from crime interdiction and causing a huge drop in morale and confusion over their mission. The misuse of federal troops as a stand-in for civilian law enforcement will also likely cause grumblings and pushback within the military and a fall in morale.

The military isn’t some black box that Trump can wind up and deploy. His record with getting the military to do what he wants is already quite spotty, as his recent sad military parade, complete with trudging soldiers showing lackluster enthusiasm, demonstrated to the world. The problem will only grow more acute as untrained and unprofessional new ICE agents multiply in number, recruited in large measure from political right-wing fringe and local law enforcement looking to earn big sign-on bonuses. The military will be asked to provide back up for these unseasoned federal agents even as they terrorize innocent people over the color of their skin. It’s not clear that is a sustainable program.

California is the first of many challenges for Trump’s police state, with D.C. and “sanctuary cities” such as New York City likely next up. The more the public stands up to and rejects the presence of permanent troops on the streets, the more likely the military command will recall their oaths to the Constitution and hesitate to pass along the President’s orders unconditionally.

This means that in the coming weeks and months, as federal troops begin to be deployed to our cities, our voices of dissent and protest will be more crucial than ever. They must grow loud enough for the military to understand, with no uncertainty, that the people do not assent to their presence as a posse comitatus, or to their use to intimidate and squelch democratic opposition to the Trump regime.