Adler: Trump’s troop deployment scrambles constitutional arrangements
Since his inauguration, President Donald Trump has engaged in a sustained program to scramble our constitutional arrangements and upend democratic principles.
He abandoned respect for The Blue when he pardoned the January 6 rioters and insurrectionists who attacked U.S. Capitol Police as part of a plan to prevent congressional certification of the 2020 election, in which he was defeated by Joe Biden. He has asserted “absolute” authority under Article II of the Constitution and laid waste to the doctrine of checks and balances through his usurpation of the fundamental constitutional powers of Congress, his assault on judicial independence, and his denial of the authority of courts to exercise judicial review of executive actions.
He has struck at the core of due process of law, freedom of speech and freedom of the press, and he has marshaled the full force of the federal government against institutions of knowledge and expertise — law firms, American colleges and universities, the media — created to educate and inform the public and advance and protect intellectual independence and freedom. In an unprecedented effort to control curriculum, faculty hirings and student enrollment, Trump would enshrine himself as the putative head of Harvard University, just as he installed himself as president of the Kennedy Center.
The totality of his efforts to remake our society, culture and government in his image overwhelms measurement.
President Trump’s deployment of the National Guard and active-duty Marines — a total of some 4,700 soldiers — to counter protestors, the vast majority of whom were entirely peaceful, over the objections of Los Angeles Mayor Karen Bass and California Governor Gavin Newsom, represents a continuation of his assault on our nation’s laws and norms. Trump, Vice President J.D. Vance, Secretary of Defense Pete Hegseth, and other members of the administration have variously referred to the protestors as “insurrectionists,” part of an “invasion” and “rebellion.”
Hegseth announced the use of federalized troops to protect ICE agents and federal buildings against attacks by protestors, but at a Senate hearing he refused to answer whether the soldiers might be used to enforce American laws. In a rambling speech at Fort Bragg, Trump, the first convicted felon elected to the presidency, referred to dissidents and protestors as “animals” and a “foreign enemy.” The baseless use of these inflammatory words is designed to support Trump’s consolidation of power and provide legal justification for his deployment of military forces.
Since his first term, when he asked Gen. Mark Milley, chair of the Joint Chiefs, if he could authorize shooting Black Lives Matter protesters “in the legs,” President Trump has long mused about using the military to crush protests. Trump’s order this week did not specify any standards for the use of force by troops. Speaking of the forthcoming June 14 parade in Washington, D.C., commemorating the 250th anniversary of the U.S. Army, Trump told reporters that protesters would be met by “very heavy force.” Of course, peaceful protesters are protected by the First Amendment under freedom of speech and freedom of assembly, and they constrain governmental actions that would interfere with the exercise of those rights. Consider the crucial question of whether it is legal to deploy troops on American soil.
The 1878 Posse Comitatus Act prohibits, with one exception, the use of federal troops on domestic soil for the purpose of law enforcement. However, the 1807 Insurrection Act creates an exception by allowing the president to decide whether “unlawful obstructions, combinations or assemblages, or rebellion against the authority of the United States” overwhelms the capabilities of ordinary law enforcement agencies and renders the enforcement of federal law “impracticable.” As a consequence, following the wishes of the congressional drafters of this statute and its earlier version in 1795, the president is expected to await a call from a state’s governor asking for help.
Trump did not receive from Governor Newsom a request for aid and assistance from the federal government. Newsom, like Mayor Bass, believed the Los Angeles Police Department was fully capable of handling, and where necessary, arresting, those who engaged in violence and vandalized property. For what it’s worth, the LAPD declared that it did not need the intervention of the White House.
At bottom, Trump has manufactured a crisis; indeed, he said, “Los Angeles is burning.” LA is not burning. With the falsification of an emergency, Trump created the pretext to deploy troops over the objections of state and local officials.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.