Marine officers in Twentynine Palms need posse comitatus reforms

The Los Angeles protest is the showdown that Donald Trump wants.

The Los Angeles protest is the showdown that Donald Trump wants. It’s about immigration, his signature issue. It’s in the biggest, bluest state. And it’s another excuse to expand executive power.

Declaring Los Angeles in “rebellion,” the president is invoking 10 U.S.C. 12406 to sideline posse comitatus. Posse comitatus is the law and principle that generally prevents the president from using the military as a domestic police force. The law dates to the 19th century; the principle is as old as the Magna Carta. Regardless of your opinions on immigration, Los Angeles, or Trump, sidestepping posse comitatus is a big deal and a bad development.

Los Angeles is not in rebellion. The governor has said he does not need federal help to protect public safety and uphold public order. There is no need for the president to take over the National Guard from the governor. Deploying Marines from Twentynine Palms is even more grossly inappropriate.

If I were still a Marine officer stationed on Twentynine Palms, I do not know what I would do if ordered to command troops in support of Los Angeles police. Marines must obey lawful orders; this Executive Order could well be found lawful by a judge. Marines must also support and defend the Constitution; taken in context, this Executive Order grates against the Constitution.

The president's police power grab need not stop with Los Angeles. His Executive Order is open-ended. Trump's use of the military on American soil could extend anywhere, with any personnel, for any length of time.

Democrats must counter the president’s violation of posse comitatus with a Newburgh agenda. Newburgh refers to the Newburgh Address. In this speech, General George Washington rejected frustrated officers who urged a coup against the Confederation Congress. It was one of the great victories in the history of Western democracy.

(credit: painting by Jane Sutherland/George Washington’s Mount Vernon)

The Newburgh agenda starts with governors across the country. They must refuse to cooperate with Trump’s attempts to deploy the military for law enforcement. Governors should not interfere with federal enforcement of federal law, including on immigration. Governors should also rigorously protect persons and property from rioting. But governors must zealously defend the 10th Amendment. This last amendment in the Bill of Rights grants the states any powers not expressly delegated to the federal government. James Madison was clear and firm that, in federalism, tie goes to the states.

The Courts will be called to referee between governors and the president. The challenge with relying solely on the judiciary is not just this administration’s disdain for judges. It’s also that the laws themselves are too deferential to presidential power. For this reason, as I noted above, judges may rule in ways that undermine posse comitatus.

Congress owes it to the young Marine officers in Twentynine Palms to fix these statutes. Democrats should prioritize two laws: the Posse Comitatus Act and the Insurrection Act. The former codifies how the president cannot use the military as a police force; the latter operates as the exception.

Drawing on the Brennan Center for Justice, these reforms should:

• Clarify & narrow the criteria that the president can use to deploy the military for law enforcement. For example, insurrection or the deprivation of a class of people of their constitutional rights.

• Describe the checks that Congress and the Courts can use to overturn such a deployment. Require an affirmative vote by Congress to sustain a deployment.

• Remove the distinction between the military's direct participation in law enforcement and indirect support for law enforcement. Both need express exceptions to posse comitatus.

• Prevent evidence gained from violations of posse comitatus from being used in criminal prosecutions.

• Transfer control of the District of Columbia National Guard from the president to the mayor.

• Fully place the National Guard under posse comitatus.

This last point offers an opportunity for immediate Democratic lawmaking. The Republican majority in Congress will not challenge Trump's authoritarianism. But Democratic state houses can regulate their states' National Guards. These laws can become templates for a Democratic Congress to strengthen posse comitatus.