Trump sends in the troops

Is this the Rubicon?

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This weekend in Los Angeles, Donald Trump crossed a Rubicon: he sent the armed forces to suppress protests against immigration raids targeting the area’s heavily Hispanic population.

Although the deployment of the National Guard on American streets is hardly unheard of, the way in which Trump has done it is wildly unprecedented. A state’s National Guard forces are usually called up in cooperation with a state’s governor, for instance in the aftermath of a natural disaster or domestic unrest. But Trump did it against California’s wishes - something not done since Lyndon Johnson used the National Guard to protect civil rights protesters in the 1960s South.

When LBJ did that, it was because he rightly had no faith that the authorities of the Jim Crow South were going to keep the protesters safe. But in LA today, no such dire situation exists. Protests against immigration officers were relatively small and mostly non-violent. There’s a huge array of local law enforcement agencies available to help contain them. It’s not like the LAPD has never seen a riot before.

If you look at the executive order that Trump issued to carry out this move, it becomes clear he has a bigger goal in mind. You see, the order is not limited to Los Angeles. It calls for similar steps to be taken anywhere in the country where immigration officers - or other federal officials - are supposedly being prevented from carrying out their work. They clearly had this order ready to use at the first excuse, and it may soon be applied far beyond LA.

Trump has been looking for a way to get the military involved in deportation operations all year. But doing so is tricky because it’s illegal. Under the Posse Comitatus Act, the military cannot be used for domestic law enforcement. There’s an exception to that called the Insurrection Act, which a president can invoke if there’s, well, an insurrection. But there’s clearly no insurrection in LA.

It is, as far as I know, literally unprecedented in the history of the United States to federalize a state’s National Guard in this way without invoking the Insurrection Act. And the Insurrection Act comes with an internal process before it can be invoked. You need your excuses; you need an insurrection.

But if I’m reading the situation correctly, I think what the administration is up to is trying to create a situation which it can then characterize as an insurrection, giving it an excuse to invoke the act. For now, Trump has relied on a different authority called the “protective power”, which allows the military to be used to protect federal officers carrying out their duties. It was used in the 1850s in support of the Fugitive Slave Act, another way in which Trump’s deportation policy has echoes of slavery.

The protective power is an inherent power of the presidency, so it has fewer checks and balances built into it. But if it can spark a backlash which leads to bigger protests and perhaps some serious violence - which is what I believe the administration wants - then it might just give them the excuse they need to escalate further, perhaps ending with active-duty military personnel dragging people from their beds and putting them on deportation flights.

And escalation is very possible. The National Guard soldiers who have been thrust into this situation likely don’t want to be there any more than any other sane person wants them to be there. But the problem is that they’re hardly trained for this type of mission, and so they can make mistakes. The active duty Marines at Camp Pendleton who the administration has also talked about sending in are trained for it even less.

Another problem is that the paramilitary cosplaying of Immigration and Customs Enforcement (ICE) can tend to muddy the distinction between a federal immigration officer and a soldier in the eyes of the observer. The National Guard are usually sent into a situation because they are at least a somewhat neutral, unifying force, particularly in situations where there is a long history of bad blood between the local police and a particular community. But that’s not what’s going on here. Both ICE and the Guard are outside forces, and they don’t look that dissimilar. Could a rock-throwing protester fail to make the distinction?

So what can be done? The first thing is for local civil rights leaders, politicians and journalists to keep an eagle eye on what is happening. There may turn out to be little relationship between the technical legal authority on which Trump has based this move and what the security forces do in practice. Someone needs to police the police, and make sure legal challenges are brought against abuses of power.

The second thing is to avoid giving the administration the escalation that it wants. But that’s not as easy as it sounds. Opponents of this lawless administration are currently caught between two competing imperatives. One is not to play into its hands by giving it an excuse. But the other is being willing and able to engage in mass civil disobedience and peaceful resistance when and if the administration crosses a truly major line into posing a clear and present danger to the future of the constitutional system.

And who is to say that in the next few days, what happens in Los Angeles won’t prove to be that line?