Triumph

For the State of California, the deployment of President Donald Trump de Marines and the National Guard in response to the protests of immigration in Los Angeles was an illegal “military crusade” based on Trump’s desire to boost his political agenda and silence. For the Trump administration, it is about the protection of federal law agents against a “rebellion.”

For a judge who weighed both arguments this week in San Francisco, it is up to him to decide what are the limits on presidential power, at a time when the thirst of that president for militarizing the cities is growing and the lawyers of the Department of Justice argue that the States have no other option on the matter.

The senior district judge of the United States, Charles Breyer, listened to arguments, evidence and testimonies of witnesses for three days this week that supported the demand of the governor of California Gavin Newsom against the Trump administration, claiming that the federalization of the troops deployed in the golden state violated the POSSE Comitatus Law. He 1878 Law It prohibits the use of the army in the activities of application of the civil law unless there is consent of the Congress or is “expressly authorized by the Constitution.”

Administration’s arguments seemed to depend largely on the statements that Trump’s authority To display forces It is sweeping because it has a personal interest in protecting the United States and that is part of its inherent constitutional powers as president: the doctrine is called “protective power.” Indeed, the department argued, it was practically impossible for Trump to violate the POSSE Comitatus Law.

“Even if the plaintiffs can bring a cause of civil action under the theory that the government’s conduct was” ultra vires “, which means beyond their legal powers: the standard is extremely high,” said justice lawyer Eric Hamilton.

Breyer often seemed doubtful when it was many of the arguments of the Department of Justice. It also seemed skeptical about the talas and exceptions that the administration said it gave Trump vast powers. At one point, he even asked the lawyers of the Department of Justice why he was bothered to review the summary of evidence on the POSSE Comitatus Law, since it seemed that the president had already been an exception that made him irrelevant.

“I mean, it’s like, Gee, maybe you should tell your client that they don’t have to follow the Comitatus Posse law if that is your opinion,” he said. At a later time, Breyer told an American lawyer that “you can’t just look at the words and, something like ‘Alicia in Wonderland’, let’s say words mean what I want they mean.”

The case focused on Trump’s movement to deploy 4,000 National Guard troops and 700 Marines in Los Angeles this summer, about the objection of state officials that would normally have jurisdiction. Trump said they were necessary due to the alleged riots, an echo of the statement that would use the same day again in a different place when the trial began: on Monday, Trump formally announced that it was display 800 National Guard The troops in Washington, DC and threatened that more cities could soon be found under a federal acquisition, including New York City, Baltimore, Chicago and Oakland.

The combination of the trial in California and the DC mobilized troops It gives a new urgency to the problem before Breyer. Upon urging the judge to issue a preliminary judicial order, or a stop, to the deployment of Trump troops to Los Angeles and declare that he violated the law, the Attorney General of California, Meghan Strong, encapsulated the bets that are now involved for each American.

“The Federal Government wants a sample of military force so large that any legal opposition to its agenda is effectively silenced,” he said.

What hangs on balance

Newsom never wanted federalized troops to drag Los Angeles. The application of immigration, he said in June, was something that California was not “alien” and federal assistance was not required. The same was destined to quell the pockets of civil disturbances that arose in response to the staging immigration raids, including those of the MacArthur Park, a public park, not a federal property, where almost 100 troops equipped with humvees and other “force shows” appeared, but finally emerged with empty hands.

Trump’s memorandum Calling the Guard and the Marines affirmed that the protests in Los Angeles “constitute a form of rebellion against the authority of the United States government”, which allowed him invoke A statute known as section 12406. The dark Federal Code establishes that if there is a rebellion or “danger of a rebellion” against the government, and cannot be resolved through a regular order, then the president has the right to “call the federal service” any amount of national guard that he considers appropriate.

The “rebellion” is not legally defined, but even if it were, the state of California says that it would not matter in this case because the protests in Los Angeles were never close to the local, state or federal police really overwhelming. And once the troops were on the field, says the State, the Trump administration made a direct and active use of the military to execute the laws, something that is verboten under the POSSE Commitatus law.

The Trump administration insists that these troops were only there in an indirect capacity and were providing “protection” and support to federal agents under what the memoranda of the Department of Defense considered “constitutional exceptions” to the law of 1878. And what is more, the Department of Justice affirms that because the law postse committee is a criminal statute, and Newsom brought a civil lawsuit to stop the administration. of the jurisdiction to locate any court order on the President.

When Breyer heard this in court, he seemed to stop him. He possessed a hypothetical for Doj Eric Hamilton’s lawyer: Yes, Breyer said, Trump had violated the POSSE commitatus law, what then?

“What is then the remedy? Do you say that there is no civil remedy. Are you saying that the president could be prosecuted by the Department of Justice for a criminal act? And you say that in the light of the immunity decision of the Supreme Court. Isn’t it immune?” Breyer asked, referring to the 2024 Supreme Court ruling that declared that the president has legal immunity for anything related to their “official” acts.

While Hamilton agreed that the prosecution would certainly “imply immunity problems”, the point was that, in the opinion of the United States government, regardless of the accused, there was no remedy available.

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Breyer seemed deeply skeptical. “So that’s? It’s a pity, so sad, is it over?” asked. “And that is the end of the case, despite the fact that it is a violation, supposedly, of the POSSE Commitatus Law?”

This line of argument did not surprise the lawyers for California, who left the judge with a marked evaluation of a problem that has the potential to overflow beyond the borders of a state.

“He lacks a basic common sense to affirm that a State that is occupied by a permanent army within the borders of the State does not have a legal resource to challenge the illegal conduct of these troops. That challenges the basic principles of federalism and ignores the clear intention of Congress by promulgating the Postse Comitatus law,” Strong argued.

A rock and a hard place

Over the years, the POSSE Comitatus Law has been interpreted by the courts and has always been an issue within the “central competence” of the courts to decide, said Laura Dickinson, a professor at the Law Faculty of the University of George Washington who specializes in National Security, Human Rights Affairs and Affairs that involve the law of armed conflicts.

The Judiciary is now in a massive “difficulty”, he says, since he tries to balance the legitimate presidential deference with the interests of an audience that still lives in a democracy forced by its constitution.

“The executive branch is making very, very broad arguments about the limits of the powers of the court that we have not seen before,” he said.

In addition to the threat to the public, an unnecessary deployment also creates a lot of space for the Marines and the National Guard to be in dangerous or demoralized situations. With more boots in the field in American cities, the first risk, of course, is that people’s rights could be raped.

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“The Constitution applies to everything that the police do on American soil and everything that the military could do on a police role in the American soil. For what people have rights to be free from excessive use of force, or unjustified or illegal search and seizure,” Dickinson said. “The point is that the National Guard and the Marines do not receive much training, in general, in what is considered essential for surveillance. At this time, [the] Guard Under State Control does a support job, so some units are receiving training. But it is very unequal throughout the country, and the rules for the use of force by the Army or the Guard are very different in times of peace versus times of war. “

When the troops are put in a volatile dynamic and highly politicized when watching the fellow citizens, Dickinson said “puts them in the advantage of a knife.”

“They must follow legal orders of civil authorities. That is crucial in a democracy, that is crucial for a good order and discipline in the army. They are legally obliged to follow those orders. At the same time, they could be responsible for refusing to disobey manifestly illegal orders,” he said. “When you put the members of our military or national guard, who have made great sacrifices to serve this country in this difficult position, it is really harmful.”

Militarized cities are generally not found in democracies. When putting the cities, the army and the Judicial Power of the Nation in the situation, it is having the exact effect of those boasting of the United States, stable and flourishing in America.

“With the risk that the United States looks weak and unstable,” he said.

Where does this end?

After the trial concluded, Judge Breyer did not say how quickly he would issue a ruling, but only that it would be “soon.”

If he governs in favor of California and discovers that Trump violated the POSSE Comitatus law, then the administration will appeal, Hamilton said in the Court on Wednesday. The case will then go to the Appeals Court of the 9th Circuit. In June, before trial, the Court of Appeals already governed Those troops in Los Angeles could stay while the dispute was pending because Trump had extensive authority, but not “not reviewable”, to deploy troops in US cities.

If the 9th circuit maintains a decision in favor of California, then the next probable action course for the Trump administration would be to go directly to the Supreme Court with an argument request mentions about the merits of the case. There is no guarantee that the Superior Court listens to it, but with any increase in the troops that are deployed, it may be impossible for the judges to ignore.

But by then, it can be too late.

Tom Homan, the interim director of the application of immigration and customs of the United States, summarized the feelings of the administration when talking with Reporters On Wednesday.

“President Trump does not have a limitation of his authority to make this country safe,” he said. “There is no limitation.”

Joseph Nunn, a lawyer for the National Freedom and Security Program of the Brennan Center, told News themezone that if Breyer issues a court order that orders the president to detract from the National Guard and the control of the hands to California, technically there is no “maneuvering margin”, legally speaking, so that Trump ignores or discourages the decision.

If that happens and the administration appeals, the 9th circuit can choose to issue a suspension in the court order of Breyer while the merits are heavy by the judges there. But in any scenario, Winning or Winning in California, Nunn sees a confrontation in the Supreme Court as the most likely result.

“It’s hard to know what Judge Breyer will decide, but in an inevitable appeal … Who knows what the Supreme Court will do, ultimately?” said.

Alternatively, Breyer can find that the statute Trump invoked in his memo this June, Section 12406 – is A valid exception to the POSSE Comitatus Law. While Nunn said he does not read it that way, he could see a situation in which Breyer would not find it completely unreasonable.

“The statute, in some way, reads as if it were an exception to the Postse Commitatus law and there are Multiple exceptions to her, as the insurrection law, for example, ”he said.

In the past, when the presidents wanted to use the army for the domestic police, that was what they invoked.

Genaro Molina through Gettty images

“The POSSE Comitatus Law is the most important restriction in the national activities of the US Armed Forces, but it has an application problem,” said Nunn. “This country has a problem when the president has too much authority to use the army nationwide.”

Since it is a criminal statute, it must be applied by the Department of Justice. And Nunn says throughout the history of the United States, only two people I have ever been prosecuted for violating the POSSE Comitatus law. (The convictions occurred in 1879, only one year after the law was promulgated.

“California’s efforts here to apply it through a civil lawsuit that seeks a court order is novel. It has not been proven before,” said Nunn. “But in these past cases, the courts have practically always found ways to find that the POSSE Committus law was applied or not, and if it was violated, make an available remedy.”

But here again, Nunn said: “There is a risk of reaching this situation in which this important law is basically inapplicable.”

If Breyer even gives him a modest green light, Nunn said that he really depends on the congress to decide whether he will reform or stop the powers that a president has to authorize the military for domestic use.

“That is the problem of Congress to solve. That is not a function of the president,” said Nunn.

The laws that govern domestic use of military force would need a broader review. The law, Nunn said, is like a “bird’s nest of overlapping things with several lagoons that must be closed.” But if you only think about the POSSE Commitatus Law, Nunn says that the first thing to do is do so so that the act is not a criminal statute and reform it so that people and states can demand to stop the violations of the law, and potentially seek damage, if they have been harmed.

He memorandum That Trump signed in June that he intended to grant authority to the military to deploy federalized troops of the National Guard and other active service forces is something Nunn said that he encourages the US public to carefully review.

“The memorandum does not mention Los Angeles. It does not mention California. It has no time limit or time limit. There are no geographical limits. So Memorando affirms the authority to deploy federal armed forces to help the police anywhere in the country at any time for any reason,” said Nunn. “Nothing like this has happened before in the history of the United States. The last person in affirming such a radical authority to use the army at any time in this country was King Jorge.”