Trump’s Violations of the Posse Comitatus Act

Recently, a federal district court in California ruled that Trump violated the Posse Comitatus Act when he deployed the National Guard and the US Marines to Los Angeles earlier this summer. The Posse Comitatus Act is a federal law that was originally passed in 1878.  The Posse Comitatus Act forbids anyone, including the President, from using the federal military to "police" citizens unless expressly authorized to do so by another statute. In other words, the President is not supposed to use the military as his personal police force. This law applies the principle of separation of powers between state and federal governments outlined in our Constitution. 

There are no Constitutional provisions creating exceptions to the Posse Comitatus Act, and Trump has no authority to bypass it via an executive order. The main statutory exception, the Insurrection Act, provides that, in response to a state government’s request, the president may deploy the military to suppress an insurrection in that state. An "insurrection" is inciting or giving aid to a rebellion against the United States. In the recent decision finding against the Trump administration, Judge Breyer defined "rebellion" as follows: 

In addition, the Insurrection Act allows the president — with or without the state government’s consent — to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people’s civil rights when the state government is unable or unwilling to do so.

The Insurrection Act’s exceptions don’t apply to Trump’s use (recent or threatened) of the military to police citizens. There were no insurrections or rebellions in California nor did Governor Newsom ever request federal help. The same is true of Illinois and Governor Pritzker. Rather, the people and governors of California, Illinois, and other states with Democratic governors are guilty only of exercising their First Amendment right to criticize Trump and his administration. As we know, Trump does not like criticism. He is using the military and the National Guard to target and harass his political opponents. This is underscored by Trump’s claim that he sent forces to enforce "law and order," which is legally and factually bankrupt. If rampant crime is Trump’s real reason, why has he not sent the National Guard to red states, which consistently report higher homicide rates than blue states? 

Some believe that Trump sent or is threatening to send the National Guard to blue areas not only to intimidate his opponents, but also to bait political opponents into nonpeaceful actions. The fear is that Trump wants a reason to normalize a military presence in blue states to intimidate voters in 2026, to justify a declaration of martial law, to postpone or even cancel elections, or worse. If past is precedent, it would be unwise not to take these possibilities seriously. Accordingly, we will continue to exercise our First Amendment Right to protest against Trump. In doing so, we will provide no ammunition to deceitful characterization of our protests against Trump's lawlessness as "rebellion." We will remain Indivisible: Loud, uncowed, and PEACEFUL.