The Illegal Use of Military Troops as a Domestic Police Force

Military troops have recently been deployed to Los Angeles and Washington, D.C., and the President threatens to send troops to Memphis, Chicago, Baltimore, New York, Seattle, San Francisco, New Orleans and Portland, Oregon. Deployment of military troops as a domestic police force in cities threatens the rule of law and is harmful to democracy.

A federal district court in California, Judge Charles Breyer (the younger brother of former Justice Stephen Breyer), recently ruled that President Trump, Secretary of Defense Hegseth, and the Department of Defense acted illegally and violated the Posse Comitatus Act when they deployed the National Guard and Marines to Los Angeles, California to quell protests of overly aggressive immigration enforcement.

What is the Posse Comitatus Act

Congress enacted the Posse Comitatus Act (PCA) in 1878 to prevent the President from using the military as a domestic police force. This Act was adopted after Reconstruction to ensure federal troops would not intervene in the southern States that had seceded and declared war. Today, it serves a broader purpose: shielding all Americans from Presidents who might use soldiers to suppress dissent. Judge Breyer noted in his recent opinion that the Posse Comitatus Act “was a response to systemic federal military involvement in domestic law enforcement…the police power is the quintessential power that the Constitution reserves to the states.”

Use of Troops in Los Angeles to Execute Domestic Law Violates PCA

There is a recognized exception to the Posse Comitatus Act. In 1792 the Insurrection Act was enacted, and this allows a President to deploy military troops if the State Governor requests help. This happened in 1992, when California’s Governor asked for military support in response to six days of violent riots in Los Angeles following the acquittal of four white police officers charged with beating a Black motorist, Rodney King.

But in the recent California case, the President did not invoke the Insurrection Act and California’s Governor opposed the recent military intervention in Los Angeles. Judge Breyer stated in his opinion that nearly 140 years after the passage of the PCA, “Defendants – President Trump, Secretary of Defense Hegseth, and the Department of Defense – deployed the National Guard and Marines to Los Angeles, ostensibly to quell a rebellion and ensure that federal immigration law was enforced. There were indeed protests in Los Angeles, and some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.” Judge Breyer concluded that the “defendants violated the Posse Comitatus Act.”

Judge Breyer’s analysis identifies the pivot point for when military troops can and should be deployed unilaterally by the President without a request from the State Governor – There needs to be an insurrection, a rebellion, and civilian law enforcement is unable to respond and enforce the law.

The Rule of Law protects us all from excessive military power. After Judge Breyer issued his decision and enjoined the government from further violations of the PCA, the President changed course after having threatened to send troops to Chicago (where the Illinois Governor opposed deployment of troops), and now the President declared he will deploy troops to Memphis (where the Tennessee Governor agrees to deploy troops).

Different Missions

The danger of using the military as a domestic police force has been a concern since our Nation’s founding. The military is trained for war. Its mission is to neutralize enemies, defend national sovereignty, and operate in hostile environments. Policing, on the other hand is built around protecting communities, upholding laws, and respecting civil rights. When soldiers are deployed domestically to perform police functions, the risk of excessive force, intimidation, and wrongful detentions increases dramatically. The deployment of troops untrained in law enforcement carries serious risks. Recall that at Kent State in 1970, National Guardsmen opened fire on students protesting the Vietnam War, killing four. That tragedy revealed the risks of asking soldiers – trained for combat – to police fellow citizens.

Conclusion

Everyone, regardless of political affiliation, should be concerned as the use of the military as a domestic police force continues. Using military at home will have a chilling effect on rights that are essential to democracy, such as freedom of expression and the right of assembly guaranteed in the Bill of Rights. What starts as a crackdown on protests could slide into suppression of political opponents or ordinary dissent.

As the President aggregates power to the executive branch, we should recall that among King George’s usurpations listed in the Declaration of Independence were using troops independent of and superior to civil authorities without the consent of local officials. President Eisenhower cautioned, “The world no longer has a choice between force and law; if civilization is to survive, it must choose the rule of law.” Now is the time for all Georgia Lawyers to stand up in support of the Posse Comitatus Act, the Insurrection Act, and the Rule of Law.