At Trump’s request, multiple red state governors are sending hundreds of armed National Guard forces into DC. This military occupation of the district is unprecedented and unjustified. If it’s allowed to stand, this country will be well on its way to becoming a police state. 1/22 The pretext for the deployment is allegedly “out-of-control” crime in DC. But local crime, no matter how serious, is a matter for local law enforcement. It is not the purview of the DC National Guard, let alone the Guard forces of other states. 2/22 There is a centuries-old principle against using the military for domestic law enforcement. The reason is obvious: if the president can turn the military against the people, he can suppress dissent, quash individual liberties, and undermine democracy. 3/22 Using the military as police also threatens public safety. Soldiers aren’t trained to enforce the law; they’re trained to fight and destroy an enemy. Thrusting them into the unfamiliar role of municipal police officers creates risks to civilians and soldiers alike. 4/22 Unfortunately, the law that normally prohibits using the military for law enforcement—the Posse Comitatus Act (PCA)—has several loopholes, as detailed in an October 2024 @brennancenter.org report. Trump seeks to exploit three of them. 5/22 brennancenter.org
www.brennancenter.org
First, the PCA applies only to federal armed forces. It therefore applies to National Guard forces only when they have been called into federal service or “federalized,” at which point command and control shifts from the governor to the president. 6/22 Enter Loophole #1: unlike the Guard forces of all 50 states plus Guam, Puerto Rico, and the U.S. Virgin Islands, the DC National Guard (DCNG) is always under the president’s command and control. That *should* mean that the PCA always applies… 7/22 …but the Department of Justice has long adopted the legal fiction that the DCNG, even under the president’s command, can operate in a non-federal “militia” status in which the PCA doesn’t apply. Which means the president can use the DCNG as a police force any time he wants. 8/22 To be clear, no court has endorsed this legal fiction, nor has Congress weighed in on the matter. But for the time being, it creates a gaping hole in the PCA—one that is exacerbated by the deployment of out-of-state National Guard forces. 9/22 Enter Loophole #2. Under Section 502(f) of Title 32, governors may agree to deploy their Guard forces to perform missions requested by the president or Secretary of Defense, without the Guard being called into federal service. 10/22 cnas.org
www.cnas.org
Trump relied on this authority in June 2020 to ask governors to send their Guard forces into DC to help quell the protests that followed the police killing of George Floyd. Eleven governors agreed, and thousands of out-of-state Guard forces descended on the district. 11/22 Because the Guard isn’t formally federalized under Title 32, the PCA doesn’t apply—even though, in practice, Guard forces performing a federal mission may be taking direction from the federal government. That’s particularly the case if they’re working with the DCNG. 12/22 Defense Department testimony confirmed that out-of-state Guard forces in 2020 were integrated into the DCNG chain of command, effectively placing them under federal control. Again, that is a situation in which the PCA *should* apply, but courts have not weighed in. 13/22 Of course, these legal questions arise only if Guard forces are engaged in law enforcement. Enter Loophole #3: The PCA does not specify what constitutes law enforcement, and this administration takes a notably cramped view of the concept for PCA purposes. 14/22 For instance, even though the case law strongly suggests otherwise, the administration has argued in the L.A. litigation that the PCA doesn’t apply if the military’s broader purpose is the protection of federal property and functions (including law enforcement functions). 15/22 All of these loopholes combine to give the president free rein—unless/until checked by Congress, the courts, or the people—to flood DC with armed military personnel. And while the stated aim of the deployment is to restore law and order in DC… 16/22 …no one should be fooled by this. Personnel deployed in DC over the past week seem far more intent on arresting undocumented immigrants and engaging in dramatic shows of force than responding to the kind of criminal conduct that is of concern to DC residents. 17/22 Their actions smack of an attempt to intimidate the populace, not protect it. Heavily armed officers wearing no identification have flooded all corners of the city. There have been multiple accounts, some backed by video footage, of people being tackled by masked officers. 18/22 It’s clear that many, if not most, DC residents feel *less* safe since the deployment. As one indicator, reservations at DC restaurants plummeted in the past week. People are staying home because they are afraid to walk the militarized streets of DC. 19/22 wusa9.com
www.wusa9.com
That should surprise no one. And while the president can’t replicate all of the legal maneuvers he’s using in DC in other cities, the L.A. deployment shows that he has other legal tricks up his sleeve. He’s made clear that he plans to use them. 20/22 youtube.com
Is this what we want? A country where armed soldiers and masked federal agents roam our streets, set up traffic checkpoints in our cities, and physically tackle people on sidewalks? That is what’s coming across the country—and soon—if the occupation of DC isn’t stopped. 21/22 It can be stopped in three ways. Congress can act. The courts can step in. And—perhaps most important—the people can speak out. This administration is not immune to public pressure. Make sure Trump knows that Americans don’t want their country to become a police state. 22/22