Trump and the Rule of Law

I am going to touch on a couple of different topics today, but first I am going to start with a basic civics lesson. This is necessary because even members of the so-called "elite" media don't appear to have a particularly solid grasp of the subject. Many Americans seem to have forgotten, or not learned in the first place, that the power to create law lies with Congress. When cult leader, convicted felon, and failed President Donald Trump sits behind the Resolute Desk with a binder and a Sharpie and makes a spectacle of signing documents that he frequently doesn't understand, he is rarely signing laws. Most of the time, he is signing executive actions that are little more than glorified interoffice memos. Trump, whose connection to reality is tenuous at best, often claims that he is taking actions that are not actually codified in the document being signed. At other times, he may be accurately describing the contents of what he is signing, but he lacks the authority for what is being declared. The trouble is that in both cases, the public often understands Trump's signature to be creating law. Even worse, the media often reports it as such. But let's be clear: laws are created by Congress through legislation, which is then enacted into law by the President. The President alone cannot make laws.

Why I am bringing this up now, and at such an elementary level, is because the President has been talking a lot about elections lately. Trump has said that he will issue an executive order ending the use of mail-in ballots. When reporting this, the New York Times got it right, saying:

The president does not have the power to unilaterally change voting laws. The Constitution vests the power to set the “times, places and manner” of elections with states, and it gives only Congress the ability to override state laws on voting. Any executive order from the president regarding elections is likely to see immediate legal challenges.

However, when Trump later said that he would issue an executive order requiring voter identification for all elections, the Times seems to have lost its footing a bit. In this case, the Times reported:

The announcement signals Mr. Trump’s latest effort to influence election laws using an executive order, something that he has dubious authority to do. The Constitution gives the president no explicit authority to regulate elections. Rather, it gives states the power to decide the rules of elections, oversee voting and try to prevent fraud. It gives Congress the ability to override state laws on voting. Any executive order from the president regarding elections is likely to see immediate legal challenges.

To be clear, Trump does not have "dubious" authority. He has absolutely no authority to change election laws. The Constitution not only does not give the President "explicit" authority, but does not provide "implicit" or any other kind of authority either. Moreover, as the article goes on to explain, in a case involving an earlier Trump executive order dealing with voter registration, a federal judge ruled against Trump saying, "The Constitution does not grant the president any specific powers over elections." Therefore, rather than hemming and hawing about Trump's actions being "dubious", proper reporting would rightly describe them as unconstitutional, unlawful, and an indication that the President is attempting to exceed his authority. When the President is attempting to act like a dictator, there is no reason for the press to sugarcoat things.

Speaking of laws and the Constitution, there is news out of Los Angeles this morning involving Trump's use of National Guard troops in the city. Federal Judge Charles Breyer ruled that the use of the troops violated the Posse Comitatus Act. With the caveats that I am not a lawyer and the news is very recent and I have not been able to do much research about it yet, here is my understanding of things. The Posse Comitatus Act limits the use of the military by the federal government for domestic law enforcement. Breyer found that the National Guard had been used unlawfully for such purposes and he enjoined the government from further use of the National Guard and military for law enforcement purposes. The judge stayed his decision in order to allow the Trump administration time to appeal. Presumably, this issue will ultimately be decided by the U.S. Supreme Court.

It should be noted that Breyer's ruling does not prohibit Trump from deploying the National Guard in Los Angeles and the remaining troops do not need to be withdrawn. They can still be used to protect federal facilities and other lawful activities. The troops simply cannot be used for law enforcement. Moreover, the ruling is limited to the Northern District of California and, as such, has no authority in other federal court districts.

Given that this is a District of Columbia-based website and that National Guard troops have been deployed to the District and are conducting law enforcement duties, I want to address differences between the situation in D.C. and Los Angeles. Again, I am not a lawyer. So please forgive any errors and feel free to correct them. That said, the National Guard was deployed in Los Angeles under the authority of Title 10 of the U.S. Code, section 12406. This provision allows the National Guard to be called into federal service when the U.S. is being invaded, there is a rebellion, or regular law enforcement is not able to execute federal law. The government argued in court that this section exempts the military from the Posse Comitatus Act. Breyer did not buy the government's argument in that regard and, furthermore, found that the government had not met the requirements of section 12406. Therefore, the National Guard units were subject to the Posse Comitatus Act and had unlawfully engaged in law enforcement.

In D.C., the National Guard has been deployed under the authority of a different law, Title 32 of the U.S. Code, section 502(f). This allows the National Guard to be deployed in non-federalized status. The distinction here is important. The Posse Comitatus Act prohibits the use of the military to enforce laws by the federal government. State governments are not covered by the Act. National Guard units normally report to their state's governors and, therefore, are not subject to the Posse Comitatus Act. When National Guard units are federalized, they report to the federal government and, as Beyer has just affirmed, are subject to the Posse Comitatus Act. Title 32 is a hybrid in which National Guard units technically remain under the command of their states, but can perform federal duties. Because, strictly speaking, these troops have not been federalized, they are not subject to the Posse Comitatus Act and, therefore, can participate in law enforcement activities.

Title 32 has worked in the District because D.C. is not a state, and Trump controls D.C.'s National Guard units. The Department of Justice has argued that D.C.'s National Guard can be deployed in Title 32 status despite its reporting to the federal, rather than a state, government. Notably, this interpretation has not been tested in court. On the face of it, one might assume that since the D.C. National Guard always reports to the President, it is always federalized. But current practice is the opposite. In addition, since the Guard units technically remain under state authority, governors do not have to send their units when the President requests them. Governors are free to refuse. Republican Governor Phil Scott of Vermont has twice turned down requests to send National Guard units to the District of Columbia. In any case, the result of this is that Beyer's decision, even if affirmed by the Supreme Court, will not apply to the current National Guard deployment in the District of Columbia.

However, Breyer's ruling does have some relevance to other cities to which Trump has threatened to deploy National Guard units. National Guard units that are under state authority cannot be sent to another state without that state's consent. This should be obvious, as that would constitute an armed invasion of one state by another. Because National Guard units under Title 32 status remain under state control, such limitations remain. Therefore, to deploy National Guard units in Illinois, New York, or Maryland, Trump would have to federalize them. In that case, the Beyer ruling, if affirmed by the Supreme Court, would prohibit them from participating in law enforcement due to the Posse Comitatus Act. This is true of both the states' own National Guard and National Guard units from other states.

There are a few implications of Breyer's ruling. The first is that the attorney generals of Illinois, New York, and Maryland, as well as any other states that Trump has threatened with National Guard units, should be prepared to immediately file lawsuits similar to that filed in California. They should insist that any National Guard units that are federalized be strictly prohibited from participating in law enforcement. In addition, it is far past time for D.C. Attorney General Brian Schwab to challenge the use of Title 32 in the District. Currently, Trump is having it both ways. The National Guard units are operating under his control while claiming not to be federalized.

Both when it comes to executive actions and commanding National Guard units, Trump is subject to the rule of law. While the Supreme Court has been extremely deferential to him, that is no reason to completely abandon the legal system. Too many are far too eager to simply go along with Trump and, thereby, enable his authoritarianism. Trump wants to be a dictator. We must use every tool available to prevent him from becoming one.