Topline
A three-day trial starts Monday to determine whether President Donald Trump violated the 19th century-era Posse Comitatus Act by sending troops to Los Angeles earlier this year, in response to a lawsuit brought by California Gov. Gavin Newsom, a landmark trial that comes as Trump similarly prepares to send the National Guard to Washington, D.C.
California federal Judge Charles Breyer will hold a trial Monday through Wednesday in response to Newsom’s request that the court declare Trump violated the Posse Comitatus Act (PCA) by sending the National Guard to LA, purportedly to quell unrest and aid in the administration’s immigration efforts.
The PCA was enacted in 1878 in order to keep the military from interfering with the imposition of Jim Crow laws in the South, and broadly bars the federal government from using federal troops to participate in domestic civil law enforcement, unless expressly authorized to do so by Congress or the Constitution.
Trump deployed federal troops to Los Angeles in June amid protests against the Trump administration’s mass deportation efforts and immigration raids in the city, sparking broad pushback from Democratic Newsom and the California government, which accused the president of unlawfully sending federal troops to the city.
Newsom argues the deployment violated the PCA because federal troops allegedly played a “direct, active role in civilian law enforcement activities” by performing security operations, forming blockades that restrict civilians’ movements and taking direct steps to apprehend and detain protesters.
California argued the Trump administration fails previous tests that courts have set out to determine whether acts violate the law, which are based on whether law enforcement made “direct active use” of the military to execute laws, whether federal troops “pervaded [law enforcement’s] activities” and whether the federal troops subjected citizens to “the exercise of military power which was regulatory, proscriptive or compulsory in nature.”
The Trump administration argues it didn’t violate the PCA because the president was just “using troops to protect federal personnel and property” and not for law enforcement purposes, also arguing that California can’t sue Trump in civil court for violating the PCA because it’s a criminal statute rather than a civil one.
The trial begins Monday at 10 a.m. PDT and is expected to run through Wednesday, though it’s unclear if Breyer will rule from the bench at the end of the trial or issue a decision later on. There will not be a jury at the trial.
The trial will only focus on whether the Trump administration violated the PCA and not on separate aspects of Newsom’s lawsuit that alleged Trump unlawfully federalized the National Guard. Breyer already ruled against the Trump administration on that argument, ruling that Trump exceeded his authority in sending the federal troops and violated the 10th Amendment, ordering the troops to vacate Los Angeles. The dispute is now being appealed, however, and an appeals court has allowed troops to remain in Los Angeles while the litigation plays out.
The PCA says anyone who “willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws,” without congressional or Constitutional approval, can be punished through a fine and/or up to two years in prison. The phrase “posse comitatus” means “the power of the county” and refers to a group of citizens—or “posse”—that are called upon to help law enforcement with enforcing the law. The law broadly bars the military from being used in law enforcement, though the Brennan Center for Justice notes there are a few exceptions where doing so is allowed. The law only applies to federal troops and excludes the Coast Guard, or the National Guard when it operates under state control, rather than federal control as Trump did. The Navy and Marine Corps are also governed under a different provision of federal law. The president can also legally invoke the military under the Insurrection Act, which allows troops to be deployed in order to curb insurrections. The Department of Defense has also previously argued there are more exceptions to the law, claiming in a 2018 memo that federal military commanders can use federal troops to “engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances,” but only in “extraordinary emergency circumstances” where it’s impossible to get presidential authorization. Those arguments have never been tested before in court, however, the Brennan Center notes.
The trial comes as Trump has once again announced the deployment of federal troops to a major U.S. city, saying in a press conference Monday he will deploy the National Guard to Washington, D.C. That’s governed differently than the situation in Los Angeles, however, as Washington’s Home Rule Charter does give the president express authority to take control of the city’s law enforcement for up to 30 days in “emergency” situations.
The Trump administration deployed troops to Los Angeles in June before largely recalling them by the end of July as protests subsided, with only 250 troops remaining in the city as of July 31. Trump issued an executive order June 7 that invoked the military to deal with what he described as “violent protests,” claiming authority to do so under a statute of federal law that allows the president to invoke federal troops if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.” Thousands of troops were deployed to Los Angeles, with National Guard troops also aiding in immigration enforcement actions and briefly detaining some protesters. The unprecedented step of deploying the military in a major U.S. city drew widespread pushback from Trump critics and sparked a number of other protests throughout the United States. Newsom quickly sued the Trump administration and accused it of unlawfully sending the military to the city without his approval. The clash also furthered Newsom and Trump’s public opposition, as the California governor has emerged as one of the Democratic Party’s major figures and high-profile Trump critics ahead of the 2028 presidential election.
Los Angeles Protests: National Guard Has Detained Some Protesters (Forbes)
Trump Keeps Control Of National Guard In Los Angeles After Appeals Court Pauses Ruling (Forbes)
Trump Says Federal Government Will Take Control Of Washington, D.C., Police Department (Forbes)
The Posse Comitatus Act Explained (Brennan Center for Justice)