Military Deployments to U.S. Cities

On Friday, I wrote about a military-style operation launched by federal agencies, including Customs and Border Patrol, Immigration and Customs Enforcement, and the Federal Bureau of Investigation, in Chicago, which involved agents rappelling from a helicopter. This militarization of federal agencies is a concerning step in cult leader, convicted felon, and failed President Donald Trump's efforts to establish authoritarian rule. Over the weekend, Trump initiated a number of additional steps towards establishing military control of American cities. This involved attempts by Trump to deploy National Guard troops to cities over the opposition of local political leaders.

Trump's first deployment of National Guard troops, as well as regular military forces, was in Los Angeles. The federal use of military forces, including the National Guard, for law enforcement purposes is restricted in the United States by the Posse Comitatus Act. Trump deployed the troops 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. Because none of these conditions applied in Los Angeles, California Governor Gavin Newsom sued the Trump Administration. A federal District Judge, Charles Breyer, decided in favor of Newsom and ruled that the National Guard units were subject to the Posse Comitatus Act and had unlawfully engaged in law enforcement. However, Breyer's decision is currently stayed.

Trump and world-class hater Stephen Miller have continued to attempt to deploy National Guard units under the auspices of section 12406. On September 27, Trump "truthed" on his Truth Social social media network that he had ordered troops to be deployed to “war-ravaged Portland" and that he was "also authorizing Full Force". The next day, Secretary of Defense Pete Hegseth ordered the federalization of 200 members of the Oregon National Guard over the objection of Oregon Governor Tina Kotek. The State of Oregon and the City of Portland immediately sued to stop the deployment. U.S. District Judge Karin Immergut, appointed by Trump during his first term, held a hearing and then issued a temporary restraining order preventing the federalization of the National Guard troops.

A primary factor in Immergut's decision was that the situation in Portland simply did not meet the requirements of section 12406. Far from Trump's description of the city as “war-ravaged," the city was calm. While in the summer there had been a few moderately sized protests around the local ICE facility, these had died down. As Immergut noted in her ruling, quoting police reports, "The protests generally were limited to fewer than 30 people and were ‘largely sedate.’" Putting it bluntly, Immergut wrote that "The President’s determination was simply untethered to the facts."

This brings up another issue regarding Trump. I have been arguing for some time that Trump is cognitively impaired. Whether his brain is addled to the point that Trump can no longer distinguish reality or his advisers have established a nearly impenetrable media cordon around him, is not clear. Regardless of the case, Trump is convinced that Portland is facing major civil disturbances that simply don't exist. Following his initial order to deploy troops to Portland, Trump spoke by telephone with Kotek. After she argued that the situation in Portland was calm, Trump expressed confusion to reporter Yamiche Alcindor, saying “Am I watching things on television that are different from what's happening?" It turned out that Trump had been watching video clips on Fox News of protests following the murder of George Floyd five years ago. Nevertheless, yesterday Trump was back to insisting that "Portland is burning to the ground...It’s insurrectionists all over the place." This is completely disconnected from reality.

Immergut's ruling seemed clear enough. The situation in Portland did not justify the deployment of military troops and, therefore, the requirements of Section 12406 had not been met. However, at the time that Immergut was hearing the case, the only federalized National Guard units being considered for deployment in Portland were those of Oregon's National Guard. Therefore, her TRO was limited to those troops. Seeing an opening, Trump ordered the deployment to Portland of previously-federalized National Guard troops from California. Plaintiffs rushed back to court to request another TRO from Immergut. Sunday evening, Immergut held a hearing during which she seemed incredulous that the Administration would attempt an end run of this nature. Literally minutes before the hearing, news arrived that Trump was also considering sending members of Texas' National Guard to Portland. Making quick work of things, Immergut enjoined the administration from deploying any federalized members of the National Guard to Oregon. The Trump administration has appealed the TRO even though TROs are not generally appealable.

Trump has also had an ongoing fixation with Chicago and has repeatedly threatened to deploy National Guard troops to that city, despite the opposition from Illinois Governor JB Pritzker. Over the weekend, Trump ordered the federalization of 300 members of the Illinois National Guard. Chicago is also included among the cities to which Trump is planning to deploy members of the Texas National Guard. This morning, the State of Illinois and the City of Chicago sued the Trump administration in federal court. Two U.S. district courts have ruled against Trump's National Guard deployments, but those rulings only impact those specific districts (and the ruling in California is currently stayed in any case). While Illinois and Chicago would appear to have a strong case, some legal experts are suggesting that the Illinois case might turn out differently. Unlike Portland, there have been sizable protests at the ICE facility in Chicago, and federal agents attempting to conduct immigration arrests have met considerable opposition. Therefore, a judge may decide that the requirements of section 12406 have been met.

It is important to understand exactly what Section 12406 allows. There is no invasion or rebellion in Chicago or any other American city. Therefore, the only justification for the invocation of Section 12406 is that "the President is unable with the regular forces to execute the laws of the United States". National Guard units deployed in this capacity will not be able to enforce local or state laws. Generally, they should be limited to protecting federal facilities and providing security for federal personnel. However, in the case of Los Angeles, Judge Breyer found that military forces had exceeded their authority and, thereby, violated the Posse Comitatus Act. Therefore, the danger exists that, once deployed, military troops will act unlawfully.

The sensitivity surrounding this issue has come up in another state. In Tennessee, Trump has promised to deploy National Guard units to Memphis. This has turned into an on-again, off-again deployment as Tennessee Governor Bill Lee has carefully negotiated the precise duties of the military units. One irony of this deployment is that the Tennessee National Guard reports to Governor Lee. He does not need Trump to deploy the troops as he is perfectly able to do it himself. Nevertheless, Lee wants to be seen as cooperating with Trump. Under the terms of deployment that Lee created, the National Guard troops will have virtually no law enforcement involvement beyond purely support functions.

The recent revelation that Texas will deploy National Guard troops to other states is another dangerous development. The participation of Texas Governor Greg Abbott is particularly ironic because just a decade ago, he was a proponent of a conspiracy theory that former President Barack Obama was going to deploy federal troops to Texas in order to exert martial law. At that time, Abbott ordered the Texas National Guard to monitor federal troop activity. Now, Abbott is supporting the deployment of federalized Texan Guard units to other states against the will of the governors of those states. Many actions taken by Trump and his supporters suggest that they have no fear of a future Democratic presidential administration. This is another example. In a normal world, Abbott might be concerned about setting a precedent in which a future President Alexandria Ocasio-Cortez deploys National Guard units from New York and California to Texas without the consent of the governor of Texas. In today's world, Abbott seems certain that such an event will not happen.

This leads to the point at which I will stop merely recounting facts and, instead, provide nothing but opinion. Remember what they say about such things. They are free and worth every penny. However, I am increasingly convinced that the deployment of military troops is only step one of a multi-stage plan. Trump is establishing military footholds in Democratic-majority cities, not for the purpose of fighting crime — something that the Posse Comitatus Act prevents forces federalized under section 12406 from doing — but rather to be prepared to counter protesters. What would cause the Trump administration to believe that there will be large protests in the future? Other steps that the administration plans to take. For instance, I suspect that Trump will ultimately attempt to interfere in voting in these cities. He will claim that undocumented residents have been registered to vote, that George Soros has somehow corrupted the voting rolls, that local Democratic leaders are cheating, or something else. Trump will then take control of elections in these cities in which large numbers of Democratic votes are concentrated. Altering the voting in Chicago could potentially result in Illinois as a state voting for a Republican president. It would be a bit more difficult to alter the state-wide result in Oregon merely by interfering with Portland's voting, but it is not outside the realm of possibility. Whether it will be voting interference or something else, I am convinced that Trump expects protests and plans to use the military to put them down.

As I said above, this administration is not acting like one that is concerned about a future Democratic-led government. To the contrary, it appears to be acting in ways to ensure that such a development is impossible. Most prominently, the Trump administration is introducing a militarized police state. Whether that involves federal agents acting out scenes from "Black Hawk Down" or federalized National Guard units being deployed to states in which they are not wanted, the specter of heavily armed and armored police on the streets of American cities is increasingly common. Trump may have given the game away this weekend when speaking to members of the U.S. Navy, Trump suggested that troops should "take care of this little gnat that’s on our shoulder called the Democrats". Urging the U.S. military to "take care" of Democrats could hardly be more indicative of Trump's intentions. Trump plans to use the military against the American people. He has said so, and he is already taking steps to do it.