{"id":16251,"date":"2025-08-20T17:36:28","date_gmt":"2025-08-21T00:36:28","guid":{"rendered":"https:\/\/cldc.org\/?p=16251"},"modified":"2026-08-14T11:46:48","modified_gmt":"2026-08-14T18:46:48","slug":"the-national-guard-is-on-a-dangerous-precipice","status":"publish","type":"post","link":"https:\/\/cldc.org\/hi\/the-national-guard-is-on-a-dangerous-precipice\/","title":{"rendered":"The National Guard Is On a Dangerous Precipice"},"content":{"rendered":"

Donald Trump stands at a podium luridly describing a city in chaos. He announces he\u2019s taking unprecedented action by calling in the National Guard to respond and restore order. Are you having d\u00e9j\u00e0 vu? Is this feeling familiar? The Trump administration has once again ordered the National Guard into an American city, this time Washington, D.C<\/a>. Last month it was Los Angeles<\/a>.<\/p>\n

These two events have a lot in common, but the legal justifications for each are very different. As the situation develops, it\u2019s worth comparing the opening stages of what\u2019s going on in D.C. to what happened in L.A. The Trump administration is staking out the use of the National Guard as a frontline in the push to capture power. Understanding the legal framework justifying the use of the National Guard is an important step in monitoring its use and recognizing when it has gone too far.<\/p>\n

CAN THE GOVERNMENT USE THE MILITARY AS LOCAL POLICE?<\/p>\n

As a general rule, the U.S. military is prohibited from performing domestic policing functions. This dates back to the Revolutionary War and the colonists\u2019 deep resentment of British occupation. King George, like all British kings, enjoyed singular control over the military<\/a>, and framers of the U.S. Constitution paid special attention to make sure power would never be concentrated in the hands of one individual.<\/p>\n

Following the Civil War, Congress adopted the Posse Comitatus Act<\/a>, in order to address former slave states\u2019 recalcitrance when it came to adopting Reconstruction Era reforms. The Posse Comitatus Act formalized the rule against the use of the military as local police, and created very narrow exceptions in the case of an emergency.<\/p>\n

The Trump administration has relied on the use of these emergency exceptions<\/a> in order to fabricate an openly false pretense for taking such extreme action. The National Guard occupies a complicated middle position<\/a> relative to the other branches of the military apparatus, precisely because part of their central purpose is to respond to domestic emergencies. There are several examples of the National Guard\u2019s activation on American soil in a security role, with mixed results. The National Guard is responsible for the tragedy at Kent State in 1970<\/a>. They were also used to maintain order during the volatile pro-school segregation demonstrations<\/a> at the outset of school desegregation. More recently the National Guard has been used as a prop in the performative theatre of patrolling the U.S.\/Mexico border<\/a>.<\/p>\n

In all of these examples, the use of the National Guard was limited in time, place, and scope. They were limited in time, because their authority ended as the emergency situation passed; limited in place, because their mandate was site-specific and not generalized to a large regional area; and limited in scope, because they performed emergency response functions without taking on other civic roles performed by other agencies, such as local police.<\/p>\n

So, while the general rule that the military cannot be used for domestic policing purposes still stands, the history of the actual use of the National Guard to respond to domestic situations reveals a more complicated picture. Historians can (and do) debate the wisdom of past uses of the National Guard; however, at least in the 20th<\/sup> century, there is little debate that the situations involving the National Guard were, in fact, actual emergencies or social inflection points that required at least some governmental response.<\/p>\n

Here, the Trump administration\u2019s use of dubious \u201cemergency\u201d<\/a> justifications for the activation of the Guard has taken us into unknown territory. The legal assumptions underlying the Posse Comitatus Act and other laws controlling the government\u2019s use of the military presume good faith on the part of the government. In short, the law assumes that, if the president says there is an emergency, an emergency actually exists. Plenty of authority exists to outline the extent of executive power<\/a>. Less clear is the legal path to challenging<\/a> the president\u2019s conclusions. The effect of this unchallenged assumption has resulted in a situation where, if the president wants to call in the military into an American city for some illegal purpose, all he need do is say<\/em> it is for an \u201cemergency purpose\u201d \u2013 then, under his reasoning, it falls within the president\u2019s power. By the time a factual challenge to the president\u2019s purported \u201cemergency\u201d works its way through the courts, months or years will have passed and damage will have been done.<\/p>\n

It should be noted that the Supreme Court\u2019s gift of presidential immunity<\/a> has removed any ability to obtain accountability through the courts after a president leaves office. The president is acting with the knowledge that he can face no legal repercussions for his decisions, regardless of their illegality. This is a hallmark feature of an authoritarian regime<\/a>.<\/p>\n

THE NATIONAL GUARD IN L.A.<\/p>\n

In June, the Trump administration deployed both the National Guard and the Marines to Los Angeles<\/a>, using 10 U.S. Code \u00a7 12406<\/a>, an obscure law permitting the domestic use of the National Guard during a \u201crebellion.\u201d<\/a> The rebellion in question? A raucous protest<\/a> against ICE raids that, while destructive to some property, paled in scope to the average major league sports team\u2019s victory celebrations<\/a>.<\/p>\n

The administration was immediately sued<\/a> to stop the use of the Guard, and an initial court victory<\/a> appeared to show the power of the judicial branch as a check on the executive. Predictably, however, the judicial order blocking the Guard was undone as quickly as it was issued<\/a>. The case is presently being litigated. As of the writing of this post, Judge Charles Breyer is considering the issue<\/a>. Judge Breyer is a former Watergate prosecutor and the brother of former Supreme Court Justice Steven Breyer. Comments from the bench during the three-day non-jury trial tend to indicate suspicion of the government\u2019s position; however, even an adverse ruling will do nothing to remedy what has happened.<\/p>\n

To borrow an idiom, you can\u2019t put the toothpaste back in the tube. The court\u2019s inability to check the power of the executive in real time has created a new opening for a president to capture more power. For example, imagine if president Obama had ordered the National Guard into the state of Oregon to put down the 2014 armed takeover of a Bureau of Land Management facility<\/a>. The courts would have immediately stopped it as an unconstitutional use of the military for domestic policing.<\/p>\n

Things are different now. The installation of an extreme right-wing majority on the Supreme Court, as well as the appointment of a slew of unqualified right-wing judges to the federal bench<\/a>, have drastically undermined the impartiality of the courts. The events that unfolded in Los Angeles are the consequence. It was a beta test for a strategy now being used in D.C. Declare a false \u201cemergency,\u201d deploy the military, interface them with other federal agents (ICE in the case of Los Angeles, in D.C. the attempted federalization<\/a> of the D.C. police), and finally, distribute those troops throughout the city. The administration successfully tested this process as means of taking over a \u201cdemocrat\u201d city. The Posse Comitatus Act and other checks on executive authority were proven ineffectual. Confident in their ability to follow this playbook without resistance, the administration is now rolling it out in other strategic locations.<\/p>\n

THE OCCUPATION OF WASHINGTON, D.C.<\/p>\n

As discussed previously, the pretense justification for sending the National Guard to police Los Angeles was the purported \u201crebellion\u201d in the form of a protest. Absent the protest, eventually even the pretense falls away. This a problem for an administration interested in undemocratically consolidating power permanently rather than on a short term, case-by-case basis. In Washington, D.C., the administration is attempting a variation on what they accomplished in Los Angeles. The D.C. deployment exploits two weaknesses in federal oversight. The first is unique position D.C. occupies as a non-state jurisdiction under the regularly-evolving rubric of Home Rule<\/a>. The Home Rule Act gives the president the authority to federalize the D.C. police under emergency circumstances for up to 30 days. The second is the pretextual excuse of a \u201ccrime emergency,\u201d<\/a> an excuse so false<\/a> that its fictitiousness may actually be the point.<\/p>\n

As with L.A., the actions in D.C. involve a fabricated pretext, the swift deployment of military personnel, and a slow-moving court system incapable of checking the executive branch. Unlike L.A., the pretextual justification is less limited in time and scope. A protest happens in a particular place at a particular time, while \u201ccrime\u201d is a general social reality unlimited by those features. An emergency announced in response to \u201ccrime\u201d has no natural end, and betrays the administration\u2019s interest in finding a strategy to permanently place a U.S. city under military governance, with the president personally in control as commander-in-chief.<\/p>\n

A major indicator of the ability of the executive to seize power will come at the end of the 30-day period under which he can statutorily federalize the D.C. police. Beyond that point, Congress must approve<\/a> further extensions of federal control. Should the administration ignore Congress\u2019s oversight role, or if Congress cosigns the president\u2019s false \u201cemergency\u201d determination, then all three branches of government will be in unprecedented alignment. Right now, the administration is on the banks of the Rubicon. If the federal seizure of D.C. persists without oversight or legal justification, we will know the administration has made their way across the river<\/a>.<\/p>\n

WHAT HAPPENS NEXT?<\/p>\n

Barring some truly unforeseen circumstance, the question of the extent of federal authority to domestically utilize the military appears to have two likely outcomes. The first is that the courts and Congress operate in a halting, inconsistent manner to create a complicated patchwork of regulations, permitting some action and prohibiting others. It is possible the administration will obey these compromise positions, and the basic outline of the system of checks and balances will remain standing for the moment.<\/p>\n

The second likely outcome is far more concerning. It is possible the courts will decline to intervene or, if they do take some action, the administration will openly defy their orders, and the military will obey the executive branch to the exclusion of the judicial. Should this occur, the likelihood of some form of Martial Law<\/a> would appear to inevitable. One does not need a terribly creative imagination to imagine what may happen should the administration find itself facing an election with poll numbers they do not like, and the unopposed power to declare a national emergency on nothing more than a pretext, prior to the election.<\/p>\n

Defending civil liberties is not limited to litigating the Bill of Rights on an a la carte<\/em> basis — it also includes defending and supporting the integrity of the local, state, and federal systems used to adjudicate and enforce those rights. The domestic use of the military in violation of the Posse Comitatus Act is an existential threat, not just to our access to civil rights, but to the systems that enshrine them in the first place.<\/p>\n

STAY TUNED FOR THE NEXT EDITION IN THIS SERIES!<\/p>\n

 <\/p>\n

CITATIONS AND LINKS (review only, not meant to be included in text of blog)<\/p>\n

Trump deploys National Guard to Washington DC and pledges crime crackdown https:\/\/www.bbc.com\/news\/articles\/cm2110me5g4o<\/a><\/p>\n

Trump sends 700 Marines and 2,000 National Guard members to Los Angeles https:\/\/www.pbs.org\/newshour\/nation\/trump-sends-700-marines-and-2000-national-guard-members-to-los-angeles<\/a><\/p>\n

The Threat Has Been Realized: Trump\u2019s Military Occupation of Los Angeles and the Attack on Dissent https:\/\/cldc.org\/the-threat-has-been-realized-trumps-military-occupation-of-los-angeles-and-the-attack-on-dissent\/<\/a><\/p>\n

The Posse Comitatus Act Explained https:\/\/www.brennancenter.org\/our-work\/research-reports\/posse-comitatus-act-explained<\/a><\/p>\n

The Coercive Acts https:\/\/www.masshist.org\/revolution\/coercive.php<\/a><\/p>\n

\u2018Perpetual crisis mode\u2019: how Trump uses emergency declarations to push radical agenda https:\/\/www.theguardian.com\/us-news\/2025\/jun\/23\/trump-emergency-declarations-politics-law<\/a><\/p>\n

What Does the U.S. National Guard Do? https:\/\/www.cfr.org\/backgrounder\/what-does-us-national-guard-do<\/a><\/p>\n

The May 4 Shootings at Kent State University: The Search for Historical Accuracy https:\/\/www.kent.edu\/may-4-historical-accuracy<\/a><\/p>\n

Little Rock School Desegregation https:\/\/kinginstitute.stanford.edu\/little-rock-school-desegregation<\/a><\/p>\n

US expands militarized zones to 1\/3 of southern border, stirring controversy https:\/\/apnews.com\/article\/border-military-trump-national-defense-area-89f046e09809fe5b5071c6b9e1f48da9<\/a><\/p>\n

Constitution and Separation of Powers https:\/\/www.americanbar.org\/groups\/crsj\/about\/initiatives\/civil-rights-civics-institute\/constitution-separation-powers\/<\/a><\/p>\n

Is crime in Washington DC ‘out of control’, as Trump claims? https:\/\/www.bbc.com\/news\/articles\/c8600x7dnn4o<\/a><\/p>\n

Emergency Powers https:\/\/www.brennancenter.org\/issues\/bolster-checks-balances\/executive-power\/emergency-powers<\/a><\/p>\n

Presidential Criminal Immunity: A Rule-of-Law Threat Beyond the Oval Office https:\/\/www.lawfaremedia.org\/article\/presidential-criminal-immunity–a-rule-of-law-threat-beyond-the-oval-office<\/a><\/p>\n

Authoritarianism, explained https:\/\/protectdemocracy.org\/work\/authoritarianism-explained\/<\/a><\/p>\n

US military was deployed to LA protests despite low risk, general testifies https:\/\/www.reuters.com\/legal\/government\/us-military-was-deployed-la-protests-despite-low-risk-general-testifies-2025-08-11\/<\/a><\/p>\n

10 U.S. Code \u00a7 12406 – National Guard in Federal service https:\/\/www.law.cornell.edu\/uscode\/text\/10\/12406<\/a><\/p>\n

Defining \u2018Rebellion\u2019 in 10 U.S.C. \u00a7 12406 and the Insurrection Act https:\/\/www.lawfaremedia.org\/article\/defining–rebellion–in-10-u.s.c.—12406-and-the-insurrection-act<\/a><\/p>\n

\u2018A moral obligation to protest\u2019: LA residents on being thrust into chaos https:\/\/www.theguardian.com\/us-news\/2025\/jun\/13\/los-angeles-response-trump-ice-raids<\/a><\/p>\n

Super Bowl LII Destruction in Philadelphia Was a White Riot https:\/\/www.teenvogue.com\/story\/super-bowl-lii-destruction-in-philadelphia-was-a-white-riot<\/a><\/p>\n

UPDATES: San Francisco federal trial over Trump’s National Guard deployment to LA https:\/\/abc7news.com\/live-updates\/national-guard-la-trial-live-updates-hearing-san-francisco-deployment-los-angeles-violated-federal-law\/17503235\/<\/a><\/p>\n

Judge blocks Trump\u2019s National Guard deployment in Los Angeles https:\/\/thehill.com\/regulation\/court-battles\/5348172-judge-blocks-trumps-national-guard-deployment-in-los-angeles\/<\/a><\/p>\n

Appeals court temporarily blocks judge\u2019s ruling to return control of National Guard to California https:\/\/www.pbs.org\/newshour\/politics\/appeals-court-temporarily-blocks-judges-ruling-to-return-control-of-national-guard-to-california<\/a><\/p>\n

Trial over California National Guard deployment concludes as judge questions limits of president’s authority https:\/\/www.cbsnews.com\/news\/national-guard-los-angeles-deployment-trial-day-3\/<\/a><\/p>\n

The Battle Over Bunkerville: The Bundys, the Federal Government and the New Militia Movement https:\/\/www.pbs.org\/wgbh\/frontline\/article\/the-battle-over-bunkerville\/<\/a><\/p>\n

Dark Money and the Courts: The Right-Wing Takeover of the Judiciary https:\/\/www.acslaw.org\/analysis\/reports\/dark-money\/<\/a><\/p>\n

DOJ removes newly named D.C. emergency police chief, agrees to rewrite Bondi directive on immigration https:\/\/www.cbsnews.com\/news\/d-c-sues-trump-bondi-over-federal-takeover-of-d-c-police\/?intcid=CNR-01-0623<\/a><\/p>\n

D.C. Home Rule https:\/\/dccouncil.gov\/dc-home-rule\/<\/a><\/p>\n

DECLARING A CRIME EMERGENCY IN THE DISTRICT OF COLUMBIA https:\/\/www.whitehouse.gov\/presidential-actions\/2025\/08\/declaring-a-crime-emergency-in-the-district-of-columbia\/<\/a><\/p>\n

2025 Year-to-Date Crime Comparison* https:\/\/mpdc.dc.gov\/dailycrime<\/a><\/p>\n

President Donald Trump needs Congress to keep control of Washington, D.C., police, experts say https:\/\/www.politifact.com\/article\/2025\/aug\/15\/home-rule-act-emergency-power-congress-approval\/<\/a><\/p>\n

Crossing the Rubicon https:\/\/www.atlasobscura.com\/places\/crossing-the-rubicon<\/a><\/p>\n

Martial Law in Times of Civil Disorder https:\/\/www.ojp.gov\/ncjrs\/virtual-library\/abstracts\/martial-law-times-civil-disorder<\/a><\/p>","protected":false},"excerpt":{"rendered":"

Donald Trump stands at a podium luridly describing a city in chaos. He announces he\u2019s taking unprecedented action by calling in the National Guard to respond and restore order. Are you having d\u00e9j\u00e0 vu? Is this feeling familiar? The Trump administration has once again ordered the National Guard into an American city, this time Washington, […]<\/p>\n","protected":false},"author":159,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[12],"tags":[],"class_list":["post-16251","post","type-post","status-publish","format-standard","hentry","category-blog"],"acf":[],"_links":{"self":[{"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/posts\/16251","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/users\/159"}],"replies":[{"embeddable":true,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/comments?post=16251"}],"version-history":[{"count":4,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/posts\/16251\/revisions"}],"predecessor-version":[{"id":16263,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/posts\/16251\/revisions\/16263"}],"wp:attachment":[{"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/media?parent=16251"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/categories?post=16251"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cldc.org\/hi\/wp-json\/wp\/v2\/tags?post=16251"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}