posse comitatus act

A federal judge ruled Tuesday that the Trump administration’s deployment of U.S. military troops to Los Angeles during immigration raids earlier this year was illegal.

U.S. District Judge Charles Breyer found the deployment violated the Posse Comitatus Act, which limited the use of the military for law enforcement purposes. He stayed his ruling to give the administration a chance to appeal.

“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into service in other cities across the country … thus creating a national police force with the President as its chief,” Breyer wrote.

The ruling could have implications beyond Los Angeles.

Trump, who sent roughly 5,000 Marines and National Guard troops to L.A. in June in a move that was opposed by California Gov. Gavin Newsom and L.A. Mayor Karen Bass, issued an executive order declaring a public safety emergency in D.C. The order invoked Section 740 of the District of Columbia Home Rule Act that places the Metropolitan Police Department under direct federal control.

In June, Breyer ruled that Trump broke the law when he mobilized thousands of California National Guard members against the state’s wishes.

In a 36-page decision, Breyer wrote that Trump’s actions “were illegal — both exceeding the scope of his statutory authority and violating the 10th Amendment to the United States Constitution.”

But the U.S. 9th Circuit Court of Appeals paused that court order, allowing the troops to remain in Los Angeles while the case plays out in federal court. The appellate court found the president had broad, though not “unreviewable,” authority to deploy the military in American cities.

In his Tuesday ruling Breyer added: “The evidence at trial established that Defendants systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles. In short, Defendants violated the Posse Comitatus Act.”

California’s fight to rein in President Trump’s deployment of troops to Los Angeles hinges on a 19th century law with a a blood-soaked origin and a name that seems pulled from a Spaghetti Western.

In a pivotal ruling this week, Senior U.S. District Judge Charles R. Breyer ordered the federal government to hand over evidence to state authorities seeking to prove that the actions of troops in Southern California violate the Posse Comitatus Act of 1878, which forbids soldiers from enforcing civilian laws.

“How President Trump has used and is using the federalized National Guard and the Marines since deploying them at the beginning of June is plainly relevant to the Posse Comitatus Act,” Breyer wrote Wednesday in his order authorizing “limited expedited discovery.”

The Trump administration objected to the move and has already once gotten a sweeping Breyer ruling that would’ve limited White House authority over the troops overturned by the 9th Circuit Court of Appeals.

This time, the Northern District of California judge made clear he would “only allow discovery as to the Posse Comitatus Act” — signaling what could be the state’s last stand battle to prevent Marines and National Guard forces from participating in immigration enforcement.

The Posse Comitatus Act dates back to the aftermath of the Civil War when the American government faced violent resistance to its efforts to rebuild Southern state governments and enforce federal law following the abolition of slavery.

The text of the law itself is slight, its relevant section barely more than 60 words. Yet when it was enacted, it served as the legal epitaph to Reconstruction — and a preface to Jim Crow.

“It has these very ignoble beginnings,” said Mark P. Nevitt, a law professor at Emory University and one of the country’s foremost experts on the statute.

Before the Civil War, the U.S. military was kept small, in part to avoid the kinds of abuses American colonists suffered under the British.

Authorities back then could marshal a crew of civilians, called a posse comitatus, to assist them, as sometimes happened in California during the Gold Rush. States also had militias that could be called up by the president to pad out the army in wartime.

But law enforcement by the U.S. military was rare and deeply unpopular. Historians have said the use of soldiers to enforce the Fugitive Slave Act — which saw escaped slaves hunted down and returned to the South — helped spark the Civil War.

In recent weeks, the Trump administration has used constitutional maneuvers invented to enforce the Fugitive Slave Act to justify using troops to round up immigrants. Experts said leaders from the antebellum South demanded similar enforcement of the law.

“The South was all for posse comitatus when it came to the Fugitive Slave Act,” said Josh Dubbert, a historian at the Rutherford B. Hayes Presidential Library in Ohio.

But by the time Congress sent federal troops to begin Reconstruction in earnest in 1867, the landscape was very different.

After white rioters razed Black neighborhoods in Memphis and mobs of ex-Confederate soldiers massacred Black demonstrators in New Orleans in the spring of 1866, “most of the South [was] turned into military districts,” said Jacob Calhoun, a professor of American history at Wabash College and an expert on Reconstruction.

“Most scholars, let alone the American public, do not understand the scale of racial violence during Reconstruction,” Calhoun said. “They only send these troops in after unimaginable levels of violence.”

At the polls, Black voters were met by white gangs seeking to prevent them from casting ballots.

“For most of American history, the idea of an American army intervening in elections is a nightmare,” Calhoun said. “[Posse Comitatus] is reemphasizing this longstanding belief but for more nefarious purposes.”

The Posse Comitatus language was tucked into an appropriations bill by Southern Democrats after their party won control of Congress in the election of 1876 — “possibly the most violent election in American history_,” Calhoun said.

Historians say white lawmakers in the post-war South sought to enshrine their ability to keep Black men from voting by barring federal forces from bolstering the local militias that protected them.

“Once they’re in control of Congress, they want to cut the appropriations for the army,” Dubbert said. “They attach this amendment to [their appropriations bill] which is the Posse Comitatus Act.”

The bill won support from some Republicans, who resented the use of federalized troops to put down the Railroad Strike of 1877 — the first national labor strike in the U.S.

“It is a moment in which white Northern congressmen surrender the South back to ex-Confederates,” Calhoun said. “With the Posse Comitatus Act, racial violence becomes the norm.”

Yet the statute itself largely vanished from memory, little used for most of the next century.

“The Posse Comitatus Act was forgotten for about 75 years, from after Reconstruction to basically the 1950s, when a defense lawyer made a challenge to a piece of evidence that the Army had obtained,” Nevitt said. “The case law is [all] after World War II.”

Those cases have largely turned on troops who arrest, search, seize or detain civilians — “the normal thing the LAPD does on a daily basis,” Nevitt said. The courts have stood by the bedrock principle that military personnel should not be used to enforce the law against civilians, he said, except in times of rebellion or other extreme scenarios.

“Our nation was forged in large part because the British military was violating the civil rights of colonists in New England,” Nevitt said. “I really can’t think of a more important question than the military’s ability to use force against Americans.”

Yet, the law is full of loopholes, scholars said — notably in relation to use of the National Guard.

Department of Justice has argued Posse Comitatus does not apply to the military’s current actions in Southern California — and even if it did, the soldiers deployed there haven’t violated the law. It also claimed the 9th Circuit decision endorsing Trump’s authority to call up troops rendered the Posse Comitatus issue moot.

Some experts feel California’s case is strong.

“You literally have military roaming the streets of Los Angeles with civilian law enforcement,” said Shilpi Agarwal, legal director of the ACLU of Northern California, “That’s exactly what the [act] is designed to prevent.”

But Nevitt was more doubtful. Even if Breyer ultimately rules that Trump’s troops are violating the law and grants the injunction California is seeking, the 9th Circuit will almost certainly strike it down, he said.

“It’s going to be an uphill battle,” the attorney said. “And if they find a way to get to the Supreme Court, I see the Supreme Court siding with Trump as well.”

The Trump administration must turn over a cache of documents, photos, internal reports and other evidence detailing the activities of the military in Southern California, a federal judge ruled Tuesday, handing a procedural victory to the state in its fight to rein in thousands of troops under the president’s command.

Ordering “expedited, limited discovery,” Senior District Judge Charles R. Breyer of the federal court in San Francisco also authorized California lawyers to depose key administration officials, and signaled he might review questions about how long troops remain under federal control.

The Department of Justice opposed the move, saying it had “no opportunity to respond.”

The ruling follows a stinging loss for the state in the 9th Circuit Court of Appeals last Thursday, when an appellate panel struck down Breyer’s temporary restraining order that would have returned control of the troops to California leaders.

Writing for the court, Judge Mark R. Bennett of Honolulu said the judiciary must broadly defer to the president to decide whether a “rebellion” was underway and if civilians protesting immigration agents had sufficiently hampered deportations to warrant an assist from the National Guard or the Marines.

Bennett wrote that the president has authority to take action under a statute that “authorizes federalization of the National Guard when ‘the President is unable with the regular forces to execute the laws of the United States.’”

But neither court has yet opined on California’s other major claim: that by aiding immigration raids, troops under Trump’s command violated the Posse Comitatus Act of 1878, which forbids soldiers from enforcing civilian laws.

Shilpi Agarwal, legal director of the ACLU of Northern California, argued the White House is abusing the post-Civil War law — known in legal jargon as the PCA — by having soldiers support Immigration and Customs Enforcement operations.

“There isn’t a dispute that what the National Guard is doing right now is prohibited by the PCA — legally it absolutely has to be,” said Agarwal. “Going out with ICE officers into the community and playing a role in individual ICE raids really feels like what the Posse Comitatus Act was designed to prohibit.”

In his June 12 order, Breyer wrote that charge was “premature,” saying that there was not yet sufficient evidence to weigh whether that law had been broken.

The 9th Circuit agreed.

“Although we hold that the President likely has authority to federalize the National Guard, nothing in our decision addresses the nature of the activities in which the federalized National Guard may engage,” Bennett wrote. “Before the district court, Plaintiffs argued that certain uses of the National Guard would violate the Posse Comitatus Act … We express no opinion on it.

Now, California has permission to compel that evidence from the government, as well as to depose figures including Ernesto Santacruz, Jr., the director of the ICE field office in L.A., and Maj. Gen. Niave F. Knell, who heads operations for the Army department in charge of “homeland defense.”

With few exceptions, such evidence would immediately become public, another win for Californians, Agarwal said.

“As the facts are further developed in this case, i think it will be come more abundantly clear to everyone how little this invocation of the National Guard was based on,” she said.

In its Monday briefing, the Trump administration argued that troops were “merely performing a protective function” not enforcing the law.

“Nothing in the preliminary injunction record plausibly supports a claim that the Guard and Marines are engaged in execution of federal laws rather than efforts to protect the personnel and property used in the execution of federal laws,” the Justice Department’s motion said.

The federal government also claimed even if troops were enforcing the law, that would not violate the Posse Comitatus Act — and if it did, the Northern District of California would have only limited authority to rule on it.

“Given the Ninth Circuit’s finding, it would be illogical to hold that, although the President can call up the National Guard when he is unable ‘with the regular forces to execute the laws of the United States,’ the Guard, once federalized, is forbidden from ‘execut[ing] the laws,’” the motion said.

For Agarwal and other civil liberties experts, the next few weeks will be crucial.

“There’s this atmospheric Rubicon we have crossed when we say based on vandalism and people throwing things at cars, that can be justification for military roaming our streets,” the lawyer said. “There was more unrest when the Lakers won the Championship.”

President Trump dropped an executive order this week about “sanctuary cities,” of which California has many.

Not to mention we are a sanctuary state.

Alone, that order should grab the attention of cities such as Los Angeles, San Francisco and Sacramento, where the commitment to protecting our immigrant neighbors, regardless of documentation, is strong.

But stack it with a few other recent Trump moves, and we have what promises to be a summer filled with dissent, fear and a flurry of military maneuvers, questionable arrests and attempts to hobble efforts to protect immigrants, documented or not.

At the nexus of these efforts by the administration is a push to centralize ever-greater power at the federal level, never mind that Republicans have long been the standard-bearers for the federalist principle of states’ rights. Remember all those 1776 patriots who have suddenly gone silent? “Don’t tread on me” has morphed from a MAGA war cry to a Democratic plea.

“We’re still a federal state, and that means that there are powers that are given to the federal government in D.C. and powers that are given to states and localities,” Ross Burkhart told me. He’s a political science professor at Boise State University who studies patterns of democracy. “I worry about the balance being tipped toward a heavily centralized state.”

First, there’s Trump’s executive order from April 11 that hasn’t made too many ripples, despite being a bonkers expansion of military authority over civilians. Trump turned over from the Interior Department to the Department of Defense a swath of land at the southern border that crosses three states — California, Arizona and New Mexico — known as the Roosevelt Reservation.

That 60-foot-wide strip is now considered part of Ft. Huachuca, though the Arizona military base is in reality 15 miles away. No matter. The Roosevelt Reservation is now patrolled by military personnel, and entering it is considered trespassing on a military base — a criminal act.

The overt premise of this unusual military takeover is to detain those crossing the border illegally.

But what happens if a U.S. citizen crosses into that zone without permission? Maybe protesters, for example? Or aid workers, the kind who bring water to the desert?

They too could be subject to military detention.

Of course, federal law, in the form of the Posse Comitatus Act, forbids the use of the military for civilian law enforcement. Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center, a nonprofit law and public policy institute, called the act “an absolutely critical protection for our freedoms and our democracy.”

Its single sentence reads: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the [armed forces] … to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

That sentence was originally written as a compromise to remove federal troops from the South during Reconstruction after the Civil War. Those troops had been protecting Black voters. But a disputed presidential election threatened stability, and so a deal was struck with still-angry white Southerners that soldiers couldn’t be used to enforce civil laws — thereby removing the largest impediment to the Jim Crow era, but also putting that critical protection in place that prevents the military being used to suppress citizens. A doubled-edged sword with profound consequences.

The Posse Comitatus Act in the most simplistic of terms eventually led to the rebellion that was the civil rights movement, and subsequent laws that have pushed for equality and equity. That in turn has led us to this moment, when the powers that be are seeking to undo those gains.

Which brings us to the “except in cases and under circumstances” part of the Posse Comitatus Act, a Trumpian loophole if ever one was written.

If Trump’s first 100 days have proved anything, it’s that anything is on the table. Take the Insurrection Act, for example, another piece of loophole-filled law Trump has recently mentioned with interest.

Imagine, for example, if sanctuary cities were deemed to be violating federal law. If their leaders were accused of harboring and helping undocumented fugitives who somehow made it past the Roosevelt Reservation, or protests in the street were deemed violent rebellions.

In his executive order Monday titled “Protecting American Communities from Criminal Aliens,” Trump hinted at such scenarios.

“Yet some State and local officials nevertheless continue to use their authority to violate, obstruct, and defy the enforcement of Federal immigration laws,” it reads. “This is a lawless insurrection against the supremacy of Federal law and the Federal Government’s obligation to defend the territorial sovereignty of the United States.”

That sounds a lot like the Insurrection Act getting ready to leap through the Posse Comitatus loophole.

The order then suggests that some state and local officials could even be in violation of the Racketeer Influenced and Corrupt Organizations Act, most commonly used against organized criminal enterprises such as the mafia, and promises to “pursue all necessary legal remedies and enforcement measures to end these violations.”

“The thing about the Insurrection Act is that it is intended to be used only in very extreme, severe emergencies where there’s an immediate and overwhelming threat to public safety or to constitutional rights that the state and local authorities cannot or will not address,” Goitein said. “Unfortunately, the actual text of the law is much broader and so it is vulnerable to being exploited by a president who is unconstrained by norms.”

The same day, Trump also signed another executive order, “Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens,” which instructs the Defense and Justice departments to “determine how military and national security assets, training, non-lethal capabilities, and personnel can most effectively be utilized to prevent crime.”

Milwaukee County Circuit Judge Hannah Dugan was arrested by FBI agents last week, charged with obstruction of justice and concealing an individual to prevent an arrest.

Well-known social justice activist the Rev. William Barber was arrested with other religious leaders while praying in the U.S. Capitol Rotunda on Monday, as part of a protest against Republican budget cuts.

An Oklahoma woman and her daughters, all U.S. citizens, were rousted from their beds in the middle of the night last week, in their underwear and at gunpoint, by federal authorities (who refused to identify themselves) looking for undocumented immigrants.

And Stephen Miller, the Santa Monica native and Trump immigration architect, had this to say after Illinois Gov. JB Pritzker called for peaceful protests against Trump’s authoritarian moves: “His comments, if nothing else, could be construed as inciting violence.”

Maybe the type of “violence” that leads Trump to invoke the Insurrection Act?

Although a hot Trump summer is on the horizon, Goitein said she has hope that people will push back successfully.

She points out that although Trump does not seem to care about crossing boundaries, he does care about his image. Currently, his popularity in polls is tanking and he is persona non grata on the international stage. The pressure, and power, of nonviolent protests may still keep this administration from treading on democracy.

The people, Goitein said, are not helpless.

“We are not there yet,” she said. But things are heating up.