The Trump Administration Gets a Serious Scolding

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The Trump administration broke the law. Its officials knew they were breaking the law. And they’ll likely try to do so again.

In its most distilled form, that’s the conclusion of Charles Breyer, the federal judge overseeing a suit brought by California Governor Gavin Newsom over the Trump administration’s deployment of National Guardsmen and Marines in and around Los Angeles in June. In a scathing opinion delivered today, Breyer said that the administration had acted illegally.

Deploying these service members “for the purpose of establishing a military presence there and enforcing federal law,” Breyer wrote, “is a serious violation of the Posse Comitatus Act.” That law, passed in 1878, bars the use of the military in domestic law enforcement, except as allowed by the Constitution or by Congress.

Breyer’s ruling makes plain how the administration worked to circumvent the law, and why. In its public statements, the White House continues to claim that it’s acting under long-established authorities and engaging in straightforward, limited efforts to reduce street crime. The arguments that their lawyers made in court point to a different conclusion: The Trump administration is seeking martial law, in practice if not in name.

Today’s ruling might seem a bit obsolete—after all, the Marines and most of the Guardsmen have been sent home. But both Donald Trump and his critics have pointed to the deployment as a model, first for the current use of the National Guard in Washington, D.C., and now for potential deployments in cities including Chicago, San Francisco, and Baltimore.

The people of the United States have been wary of the use of the military to enforce laws inside the country since even before the nation’s founding; the presence of British troops was a spur to rebellion. The Constitution grants only Congress the right to call “forth the Militia to execute the Laws of the Union,” although some delegates would have preferred not to allow that power at all. But it has been presidents who are more apt to use the military for law enforcement, and Congress has worked to limit their ability to do so over time.

The president can call up troops under the Insurrection Act in certain circumstances, and Trump has toyed with invoking the law in the past, but he did not do so in California, nor did Congress authorize the deployment. (Trump also used his authority to federalize the California National Guard, over the objections of Newsom and local authorities who argued that the Guard wasn’t needed to enforce laws.) The impact of these choices was well understood among the leadership at the military’s Northern Command, which controlled the troops.

“Everyone in U.S. Northern Command knew that the Posse Comitatus Act applied, and no one expressed a contrary view,” Breyer notes; its leaders instructed members of the Guard task force about what law-enforcement duties they could not perform. Yet officials elsewhere in the federal government felt differently. Testimony from the trial established that Defense Secretary Pete Hegseth was closely involved in the operation, and that he issued a memo that purported to outline what administration officials described as a “constitutional exception” to the Posse Comitatus Act.

The administration then used this exception to justify sending the Guard out to support missions that were plainly law-enforcement actions—in places with no true risk of riots, some 50 and 140 miles from downtown Los Angeles. They were also involved in a sweep of MacArthur Park near downtown, called “Operation Excalibur.” As Breyer pointedly wrote in a footnote, “Excalibur is, of course, a reference to the legendary sword of King Arthur, which symbolizes his divine sovereignty as king.” When Major General Scott Sherman, a National Guard commander, West Point grad, and Iraq War veteran, cited objections to Guard involvement in an initial version of the operation, a Department of Homeland Security official responded by “questioning Sherman’s loyalty to the country.”

Breyer concluded that the memo was little more than an attempt to ignore the plain language of the law. The administration argued in court that a “constitutional exception” to the Posse Comitatus Act grants the president the authority to do anything he construes as protecting federal property, personnel, or functions. “This assertion is not grounded in the history of the Act, Supreme Court jurisprudence on executive authority, or common sense,” Breyer wrote.

Today’s ruling soundly rejects the Trump administration’s reasoning, and it blocks further violations of the Posse Comitatus Act in California. (Breyer stayed his ruling until September 12.) It does not, however, apply nationwide. Although Trump seems to be treating the more widespread militarization of Washington as a test run for occupations of other cities, the legal arguments in California may be more relevant to those prospects, because Trump has narrower legal authority to act in other states than he does in the District of Columbia.

Even if the stated goal is preventing street crime, the expansive views of presidential power raised in this case could allow a president to deploy the National Guard in scenarios that are clearly counter to Congress’s intent, as well as outside of the force’s training. Breyer notes, for example, that if presidents are allowed to use the Guard whenever federal law is impeded, they could do so for far-fetched purposes such as enforcing tax laws or the Clean Water Act, or even to seize control over elections to prevent putative fraud. Perhaps that last one is not so far-fetched: Trump aides considered using the military to grab voting machines as part of his attempt to subvert the 2020 presidential election that he lost. In June, my colleague David Frum laid out just how such a deployment could be one step in a successful bid to steal an election.

Over the past few months, lower courts have repeatedly ruled against the Trump administration’s attempts to assert new powers, only for appeals courts or the Supreme Court to side with the president. The government is expected to appeal this ruling, and it could end up discarded the same way. But Breyer’s scolding provides an essential explanation of not only why Trump is overreaching but also why it is dangerous.

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Today’s News

D.C. Mayor Muriel Bowser issued an executive order permitting federal law enforcement to remain in the city indefinitely, requiring local coordination “to the maximum extent allowable by law.”
In a press conference, Donald Trump announced that the U.S. Space Command headquarters will move from Colorado to Alabama. He also confirmed that he will send federal troops to Chicago and Baltimore.
The House Oversight Committee met today with 10 people who accused Jeffrey Epstein of sex trafficking. Republican Representative Thomas Massie filed a discharge petition that could force a House vote on releasing all Justice Department files related to Epstein.

Evening Read

A black-and-white photograph from the 1950s showing teens watching TV in a living room — H. Armstrong Robert / Classic Stock / Alamy

The Big Lebowski Friendship Test

By Olga Khazan

“So, should we Lebowski, or should we not Lebowski?” I asked my friend Alex as we finished our pizza and wine on a recent evening.

I felt like I was asking her if she wanted to make out. The Big Lebowski—the 1998 Coen-brothers movie about bowling, pot, and mistaken identity—is one of my favorites, and I was nervous about introducing it to her …

But it’s a strange movie, and I have known Alex for only a couple of years. I was worried that she would dislike it so much that she would kind of dislike me too, through osmosis. Or that I would realize that we have completely different senses of humor, and that perhaps we aren’t very close after all. In Lebowski terms, would our friendship abide? Or would we be out of our element?

Read the full article.