California’s battle to stop President Trump’s troops from being sent to Los Angeles is based on a bloody 19th-century statute with a name that sounds like it was lifted from a spaghetti western.
Senior U.S. District Judge Charles R. Breyer issued a significant decision this week, directing the federal government to provide evidence to state authorities who are attempting to demonstrate that the actions of troops in Southern California are in violation of the Posse Comitatus Act of 1878, which prohibits soldiers from enforcing civilian laws.
Breyer noted in his decision granting limited expedited discovery on Wednesday that the Posse Comitatus Act clearly relates to how President Trump has utilized and continues to use the federalized National Guard and the Marines after deploying them at the beginning of June.
The Trump administration protested the action, and the 9th Circuit Court of Appeals previously overturned a broad Breyer order that would have restricted White House control over the troops.
California
A challenge to the president’s power to send troops against the views of state and local officials was decided by the appeals court.
In what may be the state’s final stand against the use of Marines and National Guard forces in immigration enforcement, the judge in the Northern District of California made it clear this time that he would only permit discovery about the Posse Comitatus Act.
The Posse Comitatus Act was created in response to violent opposition to the American government’s attempts to reestablish Southern state governments and enforce federal law after slavery was abolished during the Civil War.
The law’s actual wording is brief; the pertinent portion is hardly more than 60 words long. However, it was a precursor to Jim Crow laws and the legal eulogy to Reconstruction when it was passed.
According to Mark P. Nevitt, a law professor at Emory University and one of the nation’s leading authorities on the act, it has these extremely ignoble origins.
The U.S. military was kept small before to the Civil War, partly to prevent the kinds of mistreatment the American colonists endured at the hands of the British.
Back then, as was occasionally the case in California during the Gold Rush, authorities may assemble a group of civilians known as a posse comitatus to help them. Additionally, states possessed militias that the president might mobilize to supplement the army during times of conflict.
However, American military law enforcement was uncommon and extremely unpopular. According to historians, the Civil War was sparked in part by the use of troops to carry out the Fugitive Slave Act, which saw runaway slaves apprehended and brought back to the South.
The Trump administration has defended the use of military to apprehend immigrants in recent weeks by citing constitutional arguments that were developed to implement the Fugitive Slave Act. According to experts, antebellum Southern officials called for the legislation to be enforced similarly.
California
The Trump administration’s justification for sending troops to Los Angeles is based on extensive case law and constitutional interpretation from the 19th century.
When it came to the Fugitive Slave Act, the South was all for posse comitatus, according to historian Josh Dubbert of the Rutherford B. Hayes Presidential Library in Ohio.
However, things had changed significantly by 1867, when Congress dispatched federal troops to start Reconstruction in earnest.
“Most of the South [was] turned into military districts after white rioters destroyed Black neighborhoods in Memphis and ex-Confederate soldiers massacred Black protesters in New Orleans in the spring of 1866,” said Jacob Calhoun, a Reconstruction expert and professor of American history at Wabash College.
According to Calhoun, the majority of academics, much alone the general American public, are unaware of the extent of racial violence that occurred during Reconstruction. Only when unthinkable amounts of violence have occurred do they send these troops in.
White gangs confronted Black voters at the polling station in an attempt to stop them from voting.
According to Calhoun, the notion of an American army meddling in elections has been a nightmare for the most of American history. For darker reasons, [Posse Comitatus] is reinforcing this ancient conviction.
Following their party’s victory in the 1876 election, which was arguably the bloodiest in American history, Southern Democrats inserted the Posse Comitatus clause into an appropriations bill, according to Calhoun.
Historians claim that by prohibiting federal troops from supporting the local militias that defended Black men, white lawmakers in the post-war South aimed to solidify their power to prevent Black men from exercising their right to vote.
According to Dubbert, they intend to reduce the army’s appropriations once they take over Congress. They include this modification in the Posse Comitatus Act, which is [their appropriations bill].
Republicans who opposed the employment of federalized troops to quell the first nationwide labor strike in American history, the Railroad Strike of 1877, supported the bill.
According to Calhoun, it is a time when white legislators from the North cede the South to former Confederates.Racial violence is normalized by the Posse Comitatus Act.
However, the statute itself was mostly forgotten and little used for the majority of the following century.
After Reconstruction, the Posse Comitatus Act was mostly ignored until the 1950s, when a defense attorney challenged some evidence the Army had gathered, according to Nevitt. All of the case law was developed following World War II.
According to Nevitt, such instances have mostly focused on the troops who make the routine everyday arrests, searches, seizures, and detentions of citizens. According to him, the courts have upheld the fundamental rule that, absent revolt or other dire circumstances, military forces should not be deployed to execute the law against civilians.
According to Nevitt, the British military’s violations of the civil liberties of New England colonists played a significant role in the formation of our country. The military’s right to use force against Americans is, in my opinion, the most significant question.
However, experts noted that the law had several gaps, particularly with regard to the National Guard’s use.
According to the Department of Justice, the military’s current actions in Southern California do not fall under Posse Comitatus, and even if they did, the soldiers stationed there have not broken any laws. Additionally, it asserted that the Posse Comitatus issue was moot due to the 9th Circuit ruling supporting Trump’s right to summon soldiers.
According to some analysts, California has a compelling case.
According to Shilpi Agarwal, legal director of the ACLU of Northern California, “you literally have military people walking the streets of Los Angeles with civilian law enforcement.” The [act] is specifically intended to stop it.
Nevitt, however, had greater reservations. The 9th Circuit will most likely overturn it, he added, even if Breyer decides that Trump’s troops are breaking the law and issues the injunction California is requesting.
According to the lawyer, it will be a difficult fight. And I see the Supreme Court supporting Trump as well if they manage to make it that far.
