On the eve of President Donald Trump placing U.S. troops in the nation’s capital, a federal judge in California was flummoxed by the government’s newly adopted stance that the White House can deploy soldiers to back up cops — anywhere, anytime.
Trump’s use of Marines and the unusual commandeering of California’s National Guard in Los Angeles this summer is now under scrutiny. At a brief trial that’s coming to a close in San Francisco, Senior District Judge Charles R. Breyer on Tuesday asked to know where the federal government now draws the line, particularly when the Posse Comitatus Act of 1878 imposes strict antiauthoritarian limits to avoid using the military in a policing capacity.
“Is there any limitation to the use of federal forces? Because it is a common occurrence in our experience that law enforcement at every level is a dangerous profession, and it carries with it dangers,” Breyer said.
Eric Hamilton, a high-ranking Justice Department attorney who was previously a White House lawyer during Trump’s first administration, largely dodged the question and stressed that protests against Immigration and Customs Enforcement raids grew heated.
“There isn’t anything in the Posse Comitatus Act that requires… [the] threat has to be at a particular level,” he said.
But when the DOJ lawyer leaned heavily on the idea that the military was operating pursuant to orders from the president, who deemed protests against ICE a “rebellion” that triggered an exception to 147-year-old congressional restrictions, the judge expressed deepening skepticism at the idea the president could unilaterally justify tapping the nation’s armed forces at will — even if, as Hamilton put it, they were deployed in a “purely protective function.”
“So, he says it’s a rebellion. Does that make it a rebellion? Yes? No? I assume it’s his opinion. But does it make it one?” the judge inquired.
“It’s his judgment as president of the—” Hamilton began.
“But does it make it a rebellion? Does it make it?”
“It would not make it a rebellion,” Hamilton eventually relented, “but it’s his exercise of his judgment vested in him through the Constitution … it’s his decision to make whether the conditions exist to federalize guardsmen.”
The judge, however, was left wondering if Trump administration officials had first considered whether LA’s police or county sheriff would have been able to put down the protests on their own before intervening with soldiers and setting off a power struggle between the White House and Gov. Gavin Newsom.
That flex of authority is the theme of the week. Trump’s recent incendiary statements about potentially sending the National Guard to major cities that lean Democratic — like Baltimore, New York and Oakland — also made their way into the trial, ensuring that the judge considers the wider implications of allowing the president to wield this kind of power.
Trump himself has made clear that he saw Los Angeles as a test case for blue cities across the country. Judge Breyer must now decide whether the president’s display of military might in California went too far. Throughout Monday and Tuesday, he seemed unconvinced at the Trump administration’s distinction that troops in LA weren’t actually performing law enforcement duties when they drove in armored vehicles through the city and stood by the sidelines — with loaded rifles at the ready — as ICE agents rounded up migrants.
“Seeing a lot of military vehicles, I would assume, had some legitimate impact on a deterrence for misconduct. Isn’t that the case? They don’t have to come out. It’s a show of force,” the judge said when addressing the DOJ lawyer Tuesday afternoon.
Meghan Strong, a deputy attorney general with California’s Department of Justice, argued that “the federal government wants a display of military force so great that any lawful opposition to their agenda is effectively silenced.” And she pointed out how a July 7 federal operation at MacArthur Park, in the heart of Los Angeles’ immigrant community, was officially named “Operation Excalibur,” which she said was “inspired by the sword of King Arthur, a symbol of Arthur’s kingship and his divine right to rule.”
“If the military may jump to the aid of law enforcement anytime and any place when there’s any risk … then there would be no meaningful difference between the military and the law enforcement they purport to protect,” she cautioned.
Although the military’s presence in California has largely subsided in line with federal assurances that the deployment would end Aug. 6, documents submitted as evidence at trial show that the Trump administration has actually extended some soldiers’ tours another 90 days — which Strong noted would keep the military in California during the upcoming election.