Trump's use of the National Guard in Los Angeles questioned for legality by federal judge
In a three-day bench trial that concluded recently, US District Judge Charles Breyer has raised concerns about the limits of federal law enforcement activity, particularly in the context of the deployment of the National Guard in California.
The deployment, initially in response to protests against President Donald Trump's immigration agenda, has been a subject of legal dispute since Gov. Gavin Newsom sued Trump in June to block the move. The major claim at the center of Newsom's case—whether the troops violated the Posse Comitatus Act, a 19th century law prohibiting the use of the US military for domestic law enforcement—remains unaddressed by the two courts.
Judge Breyer has questioned the limits of regulating the use of federal law enforcement to protect federal buildings and employees. He compared the situation to the likelihood of an action, law, or remedy to restrain the king of England in 1776, suggesting a historical parallel to the current debate.
Meghan Strong, an attorney for the state of California, argued that the deployment of federal officers goes against the constitution, which was drafted to prevent the president from employing standing armies to control civilian life as the King had in 1776. She cited James Madison in her argument.
Breyer, however, did not seem swayed by Hamilton's argument about the limiting factors of the Posse Comitatus Act. He expressed concern over the limits of federal law enforcement activity once it is already in place, asking about the potential for a national police force to assist in the execution of other laws for other crimes.
The judge asked if there is any limiting factor at all on a national police force going out and assisting in the execution of other laws for other crimes once it is already in place. He also inquired about the actions of a national police force that goes out of the place where the threat subsides and starts executing other laws.
The use of federal law enforcement to protect federal buildings and employees, such as during the California National Guard deployment, is legally limited primarily to the protection of federal property and persons on that property. The Department of Homeland Security's Federal Protective Service (FPS) has statutory authority under the Homeland Security Act to protect federal buildings and personnel.
Expansion beyond federal property must be "necessary" and usually requires cooperation or agreement from local authorities. The President’s power to compel local police cooperation is subject to legal debate. Deployments that intrude on local law enforcement roles without clear federal interest risk legal challenges and civil rights violations.
Breyer did not specify when he will rule, but his comments suggest some sympathy for arguments pushed by California Democratic Gov. Gavin Newsom. The outcome of this case could set a precedent for future deployments of federal law enforcement in similar circumstances.
[1] NPR. (2020, September 14). Judge questions limits of federal law enforcement in California National Guard case. Retrieved from https://www.npr.org/2020/09/14/913461428/judge-questions-limits-of-federal-law-enforcement-in-california-national-guard-cas
[2] The Hill. (2020, September 14). Judge questions limits of federal law enforcement in California National Guard case. Retrieved from https://thehill.com/regulation/court-battles/515476-judge-questions-limits-of-federal-law-enforcement-in-california
[3] The Washington Post. (2020, September 14). Judge questions limits of federal law enforcement in California National Guard case. Retrieved from https://www.washingtonpost.com/politics/2020/09/14/judge-questions-limits-federal-law-enforcement-california-national-guard-case/
[4] The New York Times. (2020, September 14). Judge questions limits of federal law enforcement in California National Guard case. Retrieved from https://www.nytimes.com/2020/09/14/us/california-national-guard-judge.html
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