Trump’s Use Of The Military In LA Is ‘Unprecedented.’ It Could Be Just The Beginning.

The president can seize control of states’ National Guard units whenever he sees fit — even during peacetime, and even to simply back up Immigration and Customs Enforcement agents working to meet daily arrest quotas, a Justice Department lawyer argued Tuesday.

“That would be the president’s decision, based on all of the facts available to him,” Brett Shumate, the assistant attorney general for the Justice Department’s Civil Division, said when presented with that specific hypothetical scenario. Shumate was arguing at a court hearing about the fate of a temporary restraining order that would have briefly paused President Donald Trump’s federalization of California National Guard soldiers at anti-immigration enforcement protests in Los Angeles, but which the appeals court has blocked for now.

The brazen assertion of presidential power showed just how far the Trump administration is going to empower the president — and hints at what the president might do next.

Joseph Nunn, a counsel at the Brennan Center’s Liberty and National Security Program who focuses on the U.S. military’s domestic activities, told HuffPost after Tuesday’s hearing that the administration had offered an “unbelievably maximalist” position on Trump’s authority to use the military domestically. The stance, he said, was “completely incompatible with American civic traditions.”

The president’s deployment of thousands of National Guard troops and hundreds of Marines in California is the latest example of Trump working to erode a long-standing tradition that keeps the military from being used for domestic law enforcement. The Posse Comitatus Act of 1878 says the military can’t be used in that way, outside of specific exceptions like invocations of the Insurrection Act, which Trump hasn’t used.

California’s Democratic governor, Gavin Newsom, has sued over Trump’s mobilization of the state’s troops, and U.S. District Court Judge Charles R. Breyer sided with the governor last week, saying Trump’s actions had been “illegal” and ordering him to cede control of the state’s Guard back to Newsom. The Trump administration quickly appealed, and the 9th Circuit Court of Appeals put the lower court’s decision on ice, keeping the soldiers in Trump’s control. (Breyer is holding another hearing Friday about a potential longer-term pause of Trump’s federalization.)

Trump has threatened to deploy ICE for raids in major cities across the country, and the DOJ’s argument this week shows he thinks troops could come along.

And, notably, the memo Trump used to federalize California’s National Guard doesn’t say anything about Los Angeles or California specifically. Rather, it applies to any “locations where protests against these [federal law enforcement] functions are occurring or are likely to occur based on current threat assessments and planned operations.”

That memo’s language was “unprecedented in American history,” Nunn said. Even Abraham Lincoln’s invocation of the Insurrection Act at the outbreak of the Civil War applied only to Confederate states.

“The last executive to claim such a completely geographically open-ended authority to use the military domestically for law enforcement was King George,” Nunn added.

‘The President’s Decision’

The administration claims that protests in Los Angeles, which cover just a few blocks and are almost entirely nonviolent, trigger 10 U.S. Code, Section 12406, which says a president can federalize a state’s National Guard troops if “the President is unable with the regular forces to execute the laws of the United States.”

Over and over again at the hearing on Tuesday, Shumate said Trump’s power to deploy troops was both extremely broad and unreviewable by judges.

Twelve minutes into the 65-minute hearing, Judge Eric D. Miller, a Trump appointee, offered a hypothetical: Los Angeles is calm. There’s no violence, no organized opposition at all. But the president hasn’t hit his goal of removing a certain number of immigrants, and he has deployed as many ICE officers as he can using the money Congress has allocated. Would that scenario amount to justification for Trump to commandeer National Guard troops?

“It certainly could be,” Shumate replied. “Again, it would fall within the president’s discretion, based on the facts available to him.” If he abused his authority, the Justice Department lawyer said, “Congress can check that decision.” He went on, talking about “some external force” that might force the president’s hand. Miller stopped him.

“Mere dissatisfaction with the level of the regular forces that Congress had provided would not be enough under that definition?” the judge asked.

Shumate pushed back.

“I wouldn’t want to concede that,” he said. “I think that would be the president’s decision, based on all the facts available to him, and the record may support it in a particular case.”

Another Trump appointee, Judge Mark J. Bennett, chimed in with a hypothetical: What if a problem was limited to California? Could Trump call up the National Guard units of all 50 states plus those from Washington, D.C.? Would that be unreviewable by courts?

It would be, Shumate said.

These aren’t idle threats: In late May, White House deputy chief of staff Stephen Miller told ICE leadership to simply “go out there and arrest illegal aliens,” including at Home Depot and 7-Eleven locations, rather than following target lists for specific individuals, The Wall Street Journal reported.

And observers across the country have seen upticks in the types of provocative, sometimes-lawless arrests that frequently lead to protests, including arrests at courthouses, raids of jobsites, and indiscriminate enforcement at places where people of varying immigration statuses, such as day laborers and farmworkers, are known to congregate. Numerous reports detail ICE officers aggressively smashing car windows and demanding identification, even without judicial warrants.

In a Truth Social post Sunday, Trump outlined orders for ICE officers and other federal law enforcement to “expand efforts to detain and deport Illegal Aliens in America’s largest Cities, such as Los Angeles, Chicago, and New York, where Millions upon Millions of Illegal Aliens reside.”

“To ICE, FBI, DEA, ATF, the Patriots at Pentagon and the State Department, you have my unwavering support,” the message ended. “Now go, GET THE JOB DONE! DJT”

How Trump Escalated The LA Protests

Trump’s use of the military in California is the first such domestic deployment of troops against the wishes of a governor since President John F. Kennedy called up the National Guard to enforce the desegregation of the University of Alabama in 1963.

But the need for federal troops is much less clear this time. Since June 6, protesters in the Los Angeles area have demonstrated against widespread ICE enforcement actions. The protests expanded quickly, yet as they grew, they remained largely peaceful. There was some property destruction over a few blocks in downtown Los Angeles and around federal buildings in the city, but as The New York Times’ longtime Los Angeles bureau chief observed, the protests were “barely more disruptive than a Laker parade.”

What’s more, local law enforcement, including the Los Angeles Police Department, Los Angeles County Sheriff’s Department, and California Highway Patrol — not to mention the oodles of federal law enforcement in the area — have shown themselves quite willing to use overwhelming force against protesters, including tear gas and projectiles.

Nevertheless, the day after the protests began, Trump signed his order calling up “at least 2,000 National Guard personnel.” (The administration has since sent thousands more.)

That dynamic will be relevant if the administration’s immigration enforcement actions continue to grow more aggressive nationwide. Despite his language about “criminal illegals,” Trump’s mass deportation agenda has never prioritized arresting people with serious criminal backgrounds. And now, the administration is telling immigration agents to step on the gas.

And given the administration’s language — in court, presidential memoranda and public media — those agents could come with a military escort.