The Posse Comitatus Act and Trump's Intervention in D.C.

I am going to continue focusing on the federal intervention in the District of Columbia. One message that I want to keep reiterating is that what is happening in D.C. should not be viewed as simply a D.C. problem. In many ways, D.C. is being used as a proving ground. Cult leader, convicted felon, and failed President Donald Trump has already indicated that he would like to repeat the intervention in other cities. While those living in cities not targeted by Trump, or not living in cities at all, may feel that they are protected from federal occupation, history has shown that is not a sure thing. If Trump is successful in normalizing the use of federal forces, including National Guard units, in D.C., he will be free to do that wherever he likes.

The outline of Trump's apparent plan seems to be becoming clear. As I have in each of these posts, I want to reiterate that fighting crime is not Trump's goal. That is a pretext. Day by day, it becomes more obvious that the real goal is the deportation of migrants. While Trump is cognitively impaired and can be easily satisfied with flashy videos and dramatic photo ops, some of those working for him are hard and cynical people. They are after power, and for them, Trump is a means to that end. Stephen Miller, the White House Deputy Chief of Staff for Policy, clearly sees this as his opportunity to remove as many migrants from the United States as possible. To do this, Miller needs personnel to hunt migrants down and detain them. He needs places to house them prior to deportation, and he needs a means of transporting them out of the country. The money provided for the Immigration and Customs Enforcement agency, and other immigration-related federal organizations, in the One Big Beautiful Bill will provide for most of this.

With OBBB funding, as Sarah Mehta, Deputy Director of Government Affairs of the American Civil Liberties Union noted, "ICE will become the largest law enforcement agency in the U.S., with a bigger budget than most of the world's militaries." ICE will soon have enough personnel to deploy wherever it wants. The OBBB also contains $45 billion in funding for "Detention capacity expansion". Florida Governor Ron DeSantis has already contributed the "Aligator Alcatraz" facility in Florida, and other states are rushing to find creative names for their own concentration camps (Nebraska just opened the "Cornhusker Clink"). It is now being reported that Department of Homeland Security Secretary Kristi Noem is considering purchasing a fleet of aircraft for ICE to operate and use as deportation planes. So, all the pieces for a massive deportation system will soon be in place. Incidentally, the U.S. relies on immigration judges — somewhat of a misnomer because they are executive branch rather than judicial branch employees — to provide a modicum of due process for migrants. Trump has not increased the number of these judges, however, but actually decreased their number. That is a good indication that Trump does not plan for much due process in this operation.

There is still one ingredient missing, however. As events in Los Angeles and, to a lesser extent, D.C. have shown, massive migrant round-ups often create a public backlash. In Los Angeles, this took the form of large protests. In D.C. the protests have been smaller, but almost always present around the federal operations. The result is that, wherever ICE agents go, they need, at a minimum, crowd control. The more ICE agents standing around being called "fascists" by onlookers, the fewer can be throwing migrants to the ground and handcuffing them. One solution to this problem is the use of the National Guard. This step hasn't been taken yet in D.C. where National Guard units have almost exclusively been deployed at Union Station and the National Mall, where they do nothing but stand around, sweat, and get photographed. But, I suspect that this will change soon.

As Marisa Kabas of The Handbasket has reported, "members of the DC National Guard task force assigned to patrol the streets of the nation’s capital are qualifying — military speak for meeting training requirements — to carry and operate M-17 pistols." As Kabas also notes, this particular weapon is a "controversial firearm that has been banned by multiple law enforcement agencies (including ICE) for reportedly firing without a trigger pull." I am sure that all D.C. residents will feel safer knowing that we are surrounded by members of the Guard newly qualified on an undependable weapon that may go off by itself. Regardless, this is a strong indication that the National Guard is expected to do more than guard the Lincoln Memorial. I may be wrong in my speculation that they will be providing cover for ICE agents, but that seems like an obvious mission.

Historically, the military, including the National Guard, has been restricted in its involvement in law enforcement activities. The primary law preventing the military from being used as police is the 1878 Posse Comitatus Act. However, as a recent report by the Brennan Center for Justice points out, the Act is riddled with exceptions. The Center's Elizabeth Goitein, in a long thread on X, nicely summarized how loopholes in the Posse Comitatus Act can be exploited due to D.C.’s special circumstances. The PCA only applies to federal armed forces. National Guard units are normally under the command of their state's governor and, therefore, not subject to the PCA. D.C., which is not a state and does not have a governor, is an exception. The D.C. National Guard is under the control of the President. One would think that this would mean that the troops are always federalized and, therefore, always prohibited from participating in law enforcement. However, the Department of Justice has held just the opposite and argued that the D.C. Guard operates in a "non-federal" status. Therefore, the President can use the D.C. National Guard as a police force whenever he wants. As Goitein points out, no court has endorsed this interpretation, and Congress has not weighed in on the matter.

A second loophole that Goitein identified is under Section 502(f) of Title 32. This allows state National Guard units to be deployed at the request of the President, but not federalized. As such, they are not covered by the PCA. When this has happened in the past, the units have been integrated into the D.C. National Guard's chain of command. Goitein writes that this is "a situation in which the PCA *should* apply, but courts have not weighed in." The third loophole cited by Goitein is that "The PCA does not specify what constitutes law enforcement, and this administration takes a notably cramped view of the concept for PCA purposes." In Los Angeles, the government has argued that as long as the National Guard is not actually arresting people, they aren't conducting law enforcement. The National Guard has been allowed to detain individuals and turn them over to the police. This leaves a number of activities available to the National Guard, including crowd control such as I envision them doing.

Again, my prediction that the National Guard will be used to assist ICE and other federal agencies in fulfilling Trump and Miller's priority of mass deportations may be wrong. But what I think is clear is that Trump is seeking to normalize the deployment of National Guard units, and potentially military forces as well, into cities where they can participate in law enforcement. In Los Angeles, Trump faced legal challenges from California Governor Gavin Newsom. While a ruling on the case has not yet been made, the trial did not seem to go well for the government. In D.C., Trump will have greater leeway given the District's special circumstances. The goal may well be to establish the precedent in D.C. and then, based on that, duplicate the operation elsewhere.

Related to the actions in D.C. may be a revelation by the Washington Post that the Trump administration is considering the creation of a "Domestic Civil Disturbance Quick Reaction Force". This would be "composed of hundreds of National Guard troops tasked with rapidly deploying into American cities facing protests or other unrest". The article says that "The proposal being evaluated now would allow the president to mobilize troops and put them on Title 32 orders in a state experiencing unrest." Title 32 is exactly the status under which National Guard units from other states are being deployed to D.C. In essence, what is happening in D.C. is a pilot of how a Quick Reaction Force might work. The most likely instigator of public unrest at the moment appears to be opposition to the mass deportations that Miller plans.

Let's dispense with the fiction that Trump has intervened in D.C. to stop crime. D.C.'s NBC affiliate, News4, looked at arrest data and found that, since the federal deployment, the percentage of arrests for violent crimes has actually fallen. Instead, there are increased arrests for simple assault, driving without a license, and trespassing. The percentage of arrests in the D.C. wards with the highest level of crime has stayed exactly the same after the intervention as it was before. This is further evidence that the federal agencies are avoiding the high-crime areas. Instead, what the Trump administration is doing is normalizing the use of federal law enforcement and the National Guard to establish federal authority over cities. Popular dissent will be met by force, with a quick reaction force potentially standing by to assist as needed. As I have tried to emphasize before. This is not a D.C. problem. This is all Americans' problem. Masked men and unmarked cars, protected by National Guardsmen, may well be coming your way soon.

Update: Just as I hit "publish" on this post, I learned that Trump has announced that he will patrol D.C. streets alongside law enforcement officials. Trump said, "I’m going to be going out tonight with the police and with the military, of course". His mention of the military is notable as it emphasizes the use of the military in a law enforcement role. Trump travels all over D.C. normally with just D.C. police and Secret Service protection.