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These days, don't you sometimes feel like you're no longer in the world you always knew, but in a science-fiction version of it? Once upon a time, it was hard even to imagine the president of the United States employing military troops on our soil, despite the wishes of state officials. Yes, 60 years ago, President Lyndon Johnson did indeed take control of Alabama National Guard units without the permission of that state's segregationist governor to protect Martin Luther King, Jr., and other civil rights demonstrators marching from Selma to Montgomery. Still, even he didn't send in the Marines. Otherwise, if you happened to be an Afghan or an Iraqi, or most recently, of course, an Iranian, you could expect to see American military power, controlled by the president of the United States, in your face all too often. But if you lived in Austin or Boston, Portland or Los Angeles, not a chance.
Well, so long to that, as TomDispatch regular Karen Greenberg makes painfully clear today. In fact, count on one thing: it's all too obvious that Donald Trump loves being in charge of the military on American soil. As Greenberg suggests, he's having a blast sending both the Marines (yes, the Marines!) and the National Guard into Los Angeles to put down demonstrations and demonstrators he doesn't like one bit. Worse yet, as she points out, an appeals court has already given him permission (at least for the time being) to essentially use the National Guard any way he wants.
And don't be fooled into thinking that this is likely to be a one-off or, if you include Portland, Oregon, in 2020, a two-off experience. In fact, the Donald is already threatening to send troops into other Iranian" oops, sorry, I meant Democrat-controlled American cities, writing on his Truth Social account, "This is much bigger than [California Governor] Gavin [Newsom], because all over the United States, if our Cities, and our people, need protection, we are the ones to give it to them should State and Local Police be unable, for whatever reason, to get the job done." Tom
Lessons UnLearned
Portland in 2020, Los Angeles Today, the United States Tomorrow?
"I must say," Donald Trump commented, "I wish we had an occupying force." It was June 1, 2020. The president, then in his first term in office, was having a phone call with the nation's governors to discuss the ongoing Black Lives Matter (BLM) protests taking place nationwide in response to the murder of George Floyd at the hands of a Minneapolis policeman. He was urging the governors to call in the National Guard in response to BLM protests in their states. Otherwise, he threatened he would do so himself. "You have to dominate," he told them, while labeling the protesters "terrorists." Otherwise, he claimed, "they are going to run over you."
Later that morning, Trump left the White House and took his infamous walk through Lafayette Park, where members of the Washington National Guard, the FBI, the Drug Enforcement Administration, and several other agencies, joined by guard units from a number of states, confronted protesters. As I recounted in my book Subtle Tools, "Protesters threw eggs, candy bars, and water bottles, while law enforcement shot rubber bullets, launched pepper balls, and fired tear gas into the crowd."
Several weeks later, protests in Portland, Oregon, tested the president's resolve to send in an "occupying force." Although he didn't then go as far as to send in the National Guard, as he had threatened in that phone meeting, he did deploy federal agents to counter the protesters without consulting the governor of that state. Seven hundred and seventy-five Department of Homeland Security agents from U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and elsewhere appeared on the streets of Portland, authorized by a presidential edict to protect federal buildings. As if to intentionally blur the borderline between military and civilian authorities, the federal agents arrived dressed in black military-looking uniforms without identifying insignia and drove unmarked vehicles. The administration justified the deployment by arguing that local law enforcement was unable to effectively control the protests.
Not surprisingly, Oregon Governor Kate Brown and Portland Mayor Ted Wheeler protested, claiming that local law enforcement was perfectly capable of handling the protests without federal aid, and that the presence of federal agents, with their aggressive tactics, including the use of tear gas and rubber bullets, had only provoked the protesters, making the situation much worse.
Sound familiar? Fast forward to today in Los Angeles.
Donald Trump is once again president, and immigration raids across the country are hurrying to meet the White House target of 3,000 arrests per day. This time around, Los Angeles has become the focal point of the resulting battle over federal versus state authority. In early June, responding to an outbreak of protests challenging the administration's brutal immigration raids, Trump sent 700 active-duty Marines and 4,100 National Guard into that city to counter the protesters. Los Angeles Mayor Karen Bass, California Governor Gavin Newsom, and California Attorney General Bonta have protested resoundingly, claiming, like their Portland counterparts, that the deployment was unnecessary and counterproductive. Mayor Bass has maintained that the local authorities "had the situation under control," concluding that "there was no need for the National Guard." Summing up the consequences of the deployment, Governor Newsom considered them to be "intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism." Attorney General Bonta echoed Newsom by insisting that the troops were instigating violence, not defusing it, and suing the Trump administration (unsuccessfully so far) for illegally taking over a state National Guard.
Where all of this may be headed is anyone's guess, but Portland's attempts in 2020 to fight back against the deployment of federal agents, despite the wishes of local authorities, provide some guidance about what to expect, as well as lessons learned when it comes to the role of the courts, of dissent by local and state leaders, and of the path down which American law may be headed in relation to the president's ability to usurp the power of local authorities.
The Law
The battle over federal versus state authority is rooted in laws pertaining to presidential powers. The Posse Comitatus Act, as former United States Attorney Joyce Vance explains, "prohibits the federal government from using the military inside of the domestic United States for law enforcement, absent truly compelling circumstances." But there are exceptions. Title 10 of the U.S. Code fleshes them out, authorizing the president to federalize the National Guard and deploy it to a state in rare instances of invasion, rebellion, or the need to "execute [federal] laws."
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