Trump Wants A Police State

Everything Trump has done is driving us down a path toward greater authoritarian rule and militarized cities. But we have the power to stop him.

Image courtesy of the LA Times

In yesterday’s newsletter, I discussed how we should understand the legality around Trump’s decision to deploy the National Guard in Los Angeles.

As I summarized, Trump is claiming authority under Title 10 of the United States Code to federalize members of the California National Guard because of a claimed threat of a “rebellion against the authority of the Government of the United States.” Title 10 gives him the right to transform state troops under the command of Governor Newsom into federal troops under his command.

But it doesn’t give Trump the right to deploy those troops for general law enforcement. That’s because of another law, the Posse Comitatus Act, which generally forbids the use of the military as civilian law enforcement.

I discussed yesterday how Trump might, and likely will, eventually get around that by invoking the Insurrection Act, which is an exception to the normal rule that the military can’t operate against U.S. citizens. To justify this move, Trump and his aides seek to raise the temperature around the country and provoke clashes.

Between now and that declaration, there is a path they will try to march us down. Today, I want to explore what that path looks like, what we can do to push back, and what happens if and when he does invoke the Insurrection Act—along with other likely “emergency decrees” to grab even more power.

Before I dive in, a word about where we are and the general anxiety that our current situation provokes. We live in anxious times, there’s no escaping that. Anxiety can turn to crippling paralysis, however, if our minds and bodies feel overwhelmed by what’s coming at us. The instinct may be either to curl into a fetal position, to respond with uncontrolled outrage, or simply to ignore what is happening hoping things get better on their own.

None of these reactions is going to help anyone out, including ourselves.

One way the experts say to turn distress into more channeled and focused energy and motivation is to become better informed so that we don’t tumble into fight or flight panic mode. The more we know and understand the risks as well as the vulnerabilities of the regime, the better we will be able to process information and direct it to better use. That is why I write this daily newsletter; I hope it helps transform anxiety into steely hard resolve through useful, dispassionate and straightforward information.

What that said, let’s talk about how Trump is trying to put us on a path toward a “police state.”

So, what is a “police state”?

I choose to refer to Trump’s intermediate goal as a “police state” rather than “martial law” because there is an important distinction.

As I wrote yesterday, martial law refers to a state where the military controls all aspects of our legal and political system. The courts, the prosecutors, the police, the prisons—all in the hands of the military. In such a state, habeas corpus and the Fourth Amendment offer no protections, and the press and First Amendment rights are either fully or highly restricted.

We aren’t there yet, but there’s an intermediate step that is pretty awful, too. That is a police state, and you can identify it by the lawless and abusive actions of law enforcement and the military.

As Prof. Robert Reich wrote in his newsletter today, “History shows that once an authoritarian ruler establishes the infrastructure of a police state, that same infrastructure can be turned on anyone.”

This infrastructure is already falling into place. It includes

• allowing federal authorities to conduct random abductions and detentions;

• deliberately disobeying or slow walking court orders requiring the return of wrongfully detained or deported people;

• prosecuting judges and political opponents whom they claim impede ICE’s efforts;

• punishing members of the press who are in any way critical of the regime;

• rendering immigrants to foreign gulags without so much as a court hearing;

• declaring an emergency based on a so-called “rebellion” against federal authority which did not actually happen; and

• using legitimate protests to justify federalizing and deploying the National Guard—and perhaps next even the Marines if Pete Hegseth gets his way.

The next step along this fascistic path is to declare the nation in sufficient chaos to justify invocation of emergency federal powers, including the Insurrection Act. That move, which is likely coming, would permit Trump to use federal troops as law enforcement, including to investigate, detain and arrest citizens.

Identifying and calling out each of Trump’s actions above as part of a larger plan to create a police state will assist the media, the courts and the public understand the danger we are in. And when lawyers and civil rights groups succeed in pushing back on his police state agenda, we the public must also resist the cynical urge to shrug and say it doesn’t matter, that Trump will just do the next terrible thing.

It’s helpful to think of the Trump regime as arsonists, and our country as a city on a hill. Every time we put out a dangerous fire they have lit below it, no matter how small, it is a win for all of us.

Sending federal troops into Democratic strongholds

Since his first term in office, Trump has been fantasizing about how to sic troops on blue states and cities. He’s been trying to find a way to do this ever since Black Lives Matter protests sprang up around the country.

Back then, there were professionals in charge of the Pentagon such as Secretary of Defense Mark Esper. These officials pushed back hard on the idea, including warning Trump that he could not order the troops to fire upon protestors. “Can’t you just shoot them?” Esper recalls Trump asking in his memoir. “Just shoot them in the legs or something?”

As Judd Legum of Popular Info reminds us, Trump also tried to put the U.S. military in charge of quelling the protests. A shouting match between Trump and Chairman of the Joint Chiefs of Staff Gen. Mark Milley ensued. Per an account by journalist Michael Bender:

“I said you’re in f---ing charge!” Trump shouted at Milley.

“Well, I’m not in charge!” Milley yelled back.

“You can’t f---ing talk to me like that!” Trump said. […]

“Goddamnit,” Milley said to others. “There’s a room full of lawyers here. Will someone inform him of my legal responsibilities?”

The lawyers, including Attorney General Bill Barr, then reportedly sided with Milley, and Trump backed down.

Today, by contrast, Trump has appointed loyalists who are itching for a fight. For example, Defense Secretary Pete Hegseth warned that there are active duty Marines preparing to suppress any “violence.”

But the situation is being destabilized by the very actions of federal agents and troops already on the ground. It’s in fact a deliberate cycle:

1. ICE provokes local communities with abductions and detentions;

2. Protests ensue outside ICE facilities;

3. Authorities respond aggressively, creating chaos; and

4. Then that’s used to justify even more federal force.

With the presence of federal troops, the deployment tear gas against protestors will increase, making the “war zone” imagery only seem worse. And with federal troops now protecting ICE detention centers from protestors, we can expect ICE to ratchet up its abusive tactics and cause even greater outrage among targeted communities.

Knowing this regime as we do, it is highly likely that it will continue to inflame what is already a combustible situation in order to justify the state of emergency it is so eager to declare. As Governor Newsom warned,

“Donald Trump has created the conditions you see on your TV tonight. He has exacerbated the conditions, he’s lit the proverbial match, he’s putting fuel on this fire, ever since he announced he was taking over the National Guard.”

Legal action underway

In a letter to the White House, Gov. Newsom demanded Trump rescind his order and withdraw the 2,000 National Guard members deployed to mostly peaceful L.A. streets. That request will certainly be denied, setting up a legal fight over whether Trump’s order exceeded his authority.

Newsom has declared he will file suit, claiming the order has fabricated a rebellion as a pretext and his office was not consulted when Trump federalized the troops. And there is one legal hook that Newsom may be able to hang his hat on.

Title 10 requires that orders to federalize state National Guard troops “shall be issued through the governors of the States”—meaning, he argues, the governors must be consulted before the federalization occurs. Even the President’s own memo confirms this, stating that he is directing Secretary Hegseth

to coordinate with the Governors of the States and the National Guard Bureau in identifying and ordering into Federal service the appropriate members and units of the National Guard under this authority.

No such “coordination” occurred with Governor Newsom of California, and so he wants the order rescinded by the courts.

I’m skeptical of this argument because nothing in the legislative history of the amendments to Title 10 that added this requirement back in the 1950s suggests that it was a substantive impediment to the president’s ability to federalize National Guard troops. After all, President Lyndon B. Johnson did so over the objections of Southern governors when he ordered the National Guard to protect civil rights marchers. It would be an anomaly, and contrary to the goals of the Title, to allow governors to veto a federalization order.

Possible illegal activity by federal troops

As I discussed yesterday, a further limitation currently exists upon the role of federal troops deployed to states. In the absence of an exception, such as the Insurrection Act, under the posse comitatus limitations, the military cannot perform any law enforcement duties.

As law professor Steve Vladek of Georgetown noted, “Nothing that the President did Saturday night would, for instance, authorize these federalized National Guard troops to conduct their own immigration raids; make their own immigration arrests; or otherwise do anything other than, to quote the President’s own memorandum, ‘those military protective activities that the Secretary of Defense determines are reasonably necessary to ensure the protection and safety of Federal personnel and property.’”

For the time being, it appears the Trump regime is limiting the activities of the federalized National Guard troops to the protection of federal property such as ICE facilities. The phrasing of this part of Trump’s memo stands out because it is lifted nearly verbatim from a 1971 memo from the Justice Department’s Office of Legal Counsel.

As Chris Mirasola of Lawfare concisely explained, that memo “stands for the modern executive branch understanding of the protective power.” That “protective power” refers to the position that the White House has “inherent authority to use troops for the protection of federal property and federal functions.”

But like Title 10 deployment, the president’s inherent “protective power” over federal property still does not mean troops are authorized to conduct law enforcement functions. That 1971 OLC memo actually makes this clear by advising the president that he can still invoke greater powers under the Insurrection Act if circumstances further deteriorate.

If the troops Trump has deployed start to act like law enforcement anyway, a lawsuit could and should stop this in its tracks. That’s probably why the White House—especially advisor Stephen Miller who has already labeled the L.A. protests an “insurrection”—will want to drive up the temperature and foment enough chaos that a solid percentage of the country backs the White House if and when it invokes the Insurrection Act.

Not just California

The plans they have in place aren’t limited to what’s happening in Los Angeles. A closer reading of the memo reveals that they intend to federalize National Guard forces wherever there are anti-ICE protests, saying they will do so “where protests against [federal] functions are occurring or likely to occur….”

Notably, to date ICE has been conducting its most public workplace and community raids in predominantly blue cities and states. They have done this even while ignoring the widespread use of undocumented migrant labor in rural states such as Secretary Kristi Noem’s own state of South Dakota. This is a clear indication that the raids are being driven primarily by political considerations rather than to efficiently detain and deport large numbers of undocumented migrants.

The next steps are already underway

Earlier in this piece I wrote about the “infrastructure” for the establishment of a police state. I want to flag one other very big concern.

Plans are already in place to construct detention camps at military bases around the country to house hundreds of thousands of people detained by ICE. To pretend this won’t actually happen on U.S. soil is to deny history itself.

After the attack on Pearl Harbor in 1941, President Franklin D. Roosevelt used the Alien Enemies Act—the same law now cynically invoked by Trump against alleged Tren de Aragua gang members—to immediately detain thousands of Japanese nationals without charge or hearing.

That was the first step. A few months later, FDR issued Executive Order 9066 to authorize the military to “remove” more than 120,000 people of Japanese ancestry from the West Coast and “relocate” them to ten internment camps around the country.

Two-thirds of those people were U.S. citizens.

History matters because we can learn from our terrible mistakes. This is why it is vitally important to push back early on the actions of the Trump regime, including demanding due process for all detainees, forcing the release of international students targeted for their political viewpoints, and hounding the regime in federal court until every last individual sent to CECOT in El Salvador is returned to the U.S. and receives adequate due process.

It also means standing up for our neighbors when ICE comes calling and making it as difficult as peacefully possible for them to carry out their sweeps and detentions. When the military came for the Japanese 83 years ago, there was no public outcry. We cannot countenance the same silence today.

Should we not give them the excuse they want?

There is a natural instinct to hesitate in the face of injustice and worry that protesting loudly and boisterously will inevitably lead to confrontation and give the Trump regime what it wants: an excuse to invoke the Insurrection Act and issue even more emergency decrees limiting civil liberties and freedoms.

Democratic political leaders have called for protesters to remain peaceful, but any large protest inevitably draws in instigators and troublemakers. Those elements will use the chaos to vent their personal anger, foment disorder, and unfortunately burn and destroy things.

And speaking plainly and on behalf of the communities affected by ICE’s actions, we cannot reasonably expect people who see young children torn from their parents and friends and family rounded up like animals to respond without very high emotions, including seething anger.

Even if the protests remain largely peaceful, this will not matter to the Trump regime or to its propagandists on Fox and other right wing media. They will find the exceptions—the burning car, the smashed windows—and put those videos on loop. Their viewers will be misled into believing that entire cities are on fire instead of a few limited blocks being a confrontation zone, just as they were during the BLM protests. Then Trump will cite those limited instances of violence or property destruction as evidence of a “rebellion” justifying invocation of emergency measures such as the Insurrection Act. And there will not be cooler heads around to talk him out of this.

It also seems pretty clear that the White House will fabricate conflict and evidence to justify its crackdowns, just as casually and cynically as it has invented an entire criminal case against Kilmar Abrego Garcia.

Knowing this, it does no good, and is in fact highly dangerous, to remain on the sidelines and withhold protest out of fear of what might happen. That of course would also violate the first rule in fighting tyranny: Never capitulate in advance.

Our response must remain loud, sustained, peaceful and overwhelming. And there’s reason for hope still: We have learned that with every major threat, Trump Always Chickens Out, especially when he’s faced with stalwart resolve and major consequences.

We should take that lesson to heart as we enter this summer of active resistance.