Turns out Trump can’t turn active-duty troops into police officers

U.S. District Judge Charles Breyer—yes, the brother of former Supreme Court justice Stephen Breyer, a thing the right is sure to be very normal about—just ruled that President Donald Trump’s use of active-duty troops for domestic law enforcement duties in California violates the Posse Comitatus Act. 

Does that part above look very lawyerly in its phrasing? That’s because it is! It’s tempting to report this as “Judge Breyer ruled Trump’s deployment of troops in Los Angeles was illegal.” But Breyer ruled that the way in which those troops were used is illegal. Trump’s ability to deploy the troops, regrettably, remains an open question still before the Ninth Circuit Court of Appeals. 

That doesn’t mean that Breyer’s ruling wasn’t fire. 

Breyer is the judge who initially issued a temporary restraining order in June, right after the Trump administration federalized the California National Guard and sent troops into Los Angeles because the protests against Immigration and Customs Enforcement raids made agents feel sad. Back then, Breyer ruled that the administration had to return control of the National Guard to the state. The Ninth Circuit Court of Appeals did Trump a solid, though, by nearly immediately halting Breyer’s order, so active-duty federal troops have been roaming the streets of an American city for months, even though litigation was continuing and there was no ruling from any court saying this was hunky-dory. 

No, it was just so important to let Trump do what he wants immediately, despite literally everyone going, “Hmmm, isn’t the Posse Comitatus Act sorta super clear he can’t do this?”

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What Breyer held, following a trial in August, was that the government “systematically used armed soldiers (whose identity was often obscured by protective armor) and military vehicles to set up protective perimeters and traffic blockades, engage in crowd control, and otherwise demonstrate a military presence in and around Los Angeles.” Those actions are domestic law enforcement, and violate the Posse Comitatus Act. 

Says who? Breyer, some pencil-necked geek liberal judge appointed by Bill Clinton? What does he know?

Uh, actually, the list of things troops cannot do without running afoul of the Posse Comitatus Act, which includes traffic control, security patrols, and crowd control, comes from the Task Force 51 training materials the government showed to the troops sent to Los Angeles. Whoops. 

It didn’t help the administration’s case that while simultaneously howling about how Los Angeles would burn to the ground without federal intervention, the troops sent there were so underutilized that there was time to send them to help with drug raids over 100 miles from Los Angeles. 

Breyer’s opinion really highlights how much the presence of the troops made it look like the military controlled the city, even if they weren’t, say, actively arresting people. In part, that’s because everyone involved in Trump’s immigration crackdown gets to mask up, leaving it exceedingly unclear as to which group of people was cracking the skulls of Los Angeles residents. During the trial, it was clear that even the people commanding the troops and ICE agents couldn’t figure that out:

While on the ground in and around Los Angeles, Task Force 51 troops wore military uniforms, which were green or multicamouflage.. At least some ICE agents wore camouflage uniforms too. It is difficult, even for someone familiar with military uniforms and insignia, to differentiate between the uniforms from a distance or where there is a lot of commotion. Indeed, Major General Sherman and Ernesto Santacruz the Los Angeles field office director for ICE's Enforcement and Removal Operations and a veteran himself-were both unable to determine whether multiple individuals in photographs of ICE enforcement actions were Task Force 51 troops or federal law enforcement personnel. Task Force 51 troops were also armed, carrying weapons with live ammunition.

Seems bad!

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Breyer also ruled that the government’s argument at trial, which was basically that there is a magic exception to the Posse Comitatus Act as long as Trump says that the troops are there to protect federal personnel, was bunk. 

Of course, this now goes right back up to the Ninth Circuit again, and, inevitably, to the Supreme Court. The administration is going to be relentless about getting this overturned—or at least indefinitely stayed—because its arguments for deployment in California are the same ones it is trotting out for Chicago. Trump insists that all he has to do to overturn federalism and run roughshod over the states is just to yell that there is some crime emergency, and then troops go in. 

That’s ahistorical, illegal nonsense, and Breyer should be commended for saying so, even if the conservatives at the highest Court eventually agree that Trump can further dismantle democracy. 

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