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Reposted by Chris Mirasola

Steve Vladeck @stevevladeck.bsky.social · 3d

In light of Judge Immergut's ruling, there's a lot of noise today coming from the President's advisers and supporters about courts not having the power to provide prospective relief against domestic uses of the military.

Via "One First," me on the rather significant early precedent to the contrary:

181. Courts and Domestic Use of the Military

In response to adverse judicial rulings, the President's advisers and supporters are claiming courts lack the power to halt domestic use of the military. A critical early precedent is to the contrary.

www.stevevladeck.com

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Chris Mirasola @chrismirasola.bsky.social · 11d

There’s so much happening, and yet we can’t acquiesce in this becoming, or feeling, normal.

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Chris Mirasola @chrismirasola.bsky.social · 11d

For a deeper dive into how the defense department acquiesced in an incredible array of requests, well beyond the traditional bounds of the power at issue here, I wrote about these facts uncovered during the LA litigation here

The Logic of Domestic Military Deployments

verfassungsblog.de

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Chris Mirasola @chrismirasola.bsky.social · 11d

On the deployment to Portland, I don’t have much to add beyond noting again that the theory of implied power the president is relying on is incredibly vague, unmoored from constitutional text, and extremely prone to abuse. I wrote about these and other problems soon after the LA deployment.

Unpacking the Protective Power

The constitutional basis for Trump’s use of the military in LA has a long history but is ultimately unmoored from constitutional text.

www.lawfaremedia.org

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Chris Mirasola @chrismirasola.bsky.social · 29d

My horizons broaden every time I read a piece by my amazing UHLC colleague Andrew Lanham (who is unfortunately not on here—or anywhere). Just incredibly deep and rich insights at the intersection of social movements, racial justice, and national security from a fantastic legal historian.

How to Resist Trump’s Militarization of America

The president’s deployment of the armed forces on American streets is an alarming escalation. Fortunately, there’s a playbook for fighting back.

newrepublic.com

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Reposted by Chris Mirasola

Tess Bridgeman @tessbridgeman.bsky.social · Sep 5

I've read and coded every War Powers Report ever sent to Congress (check them all out, with interactive graphics and a searchable database 👇), and this one on #Trump's attack on an alleged drug smuggling vessel in the Caribbean stands out. I'll explain below:

warpowers.lawandsecurity.org

War Powers Resolution Reporting Project

A living resource on presidential reporting practice and the use of U.S. armed forces abroad.

warpowers.lawandsecurity.org

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Chris Mirasola @chrismirasola.bsky.social · Sep 4

One shoutout from the incomparable @annabower.bsky.social and my Bluesky notifications explode! You're too kind :)

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Chris Mirasola @chrismirasola.bsky.social · Sep 4

I totally recognize that there are reasonable arguments against my view (see here!) that the protective power has no foundation in the constitution. But to reject the theory behind the protective power while also upholding a limited manifestation of it seems like a particularly suboptimal result.

Unpacking the Protective Power

The constitutional basis for Trump’s use of the military in LA has a long history but is ultimately unmoored from constitutional text.

www.lawfaremedia.org

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Chris Mirasola @chrismirasola.bsky.social · Sep 4

We're also not clearly told how this more limited protective mission is supposed to square with the Posse Comitatus Act. All of which leaves a lot of room for the executive to game the opinion--and certainly doesn't require that the deployment end.

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Chris Mirasola @chrismirasola.bsky.social · Sep 4

Although he seems to reject the proposition that presidents have an inherent authority to protect federal property, persons, and functions, he later affirms that the military can be used to protect federal buildings. Why? We're not told.

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Chris Mirasola @chrismirasola.bsky.social · Sep 4

Many thanks to the team at @lawfaremedia.org for running this piece! The bench trial in Newsom v Trump uncovered really important facts about the military deployment in LA. But I found significant aspects of Judge Breyer's analysis of these facts pretty confusing.

Lawfare @lawfaremedia.org · Sep 4

Judge Breyer’s Newsom v. Trump opinion uncovers important facts about the ongoing military deployment to California, writes @chrismirasola.bsky.social—but leaves critical legal questions unanswered.

Read his breakdown of Tuesday's ruling in Newsom v. Trump here: www.lawfaremedia.org/article/the-...

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Chris Mirasola @chrismirasola.bsky.social · Sep 2

Bonus points when the daycare won’t take your kid after said appointment because it would disrupt the rigorous plan we have set for your *checks notes* one year old.

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Chris Mirasola @chrismirasola.bsky.social · Sep 2

Sure would be nice if federal judges coordinated when they release opinions with my kid’s doctors appointment schedule. But for now will just say that judge Breyer masterfully pieced together a factual record in what will some of the most consequential PCA litigation we’ve seen in decades.

Anna Bower @annabower.bsky.social · Sep 2

BREAKING: Judge Charles Breyer finds that the Trump administration violated the Posse Comitatus Act by using the military for domestic law enforcement purpose in Los Angeles.

He enjoins further violations of the Posse Comitatus Act ⬇️

storage.courtlistener.com/recap/gov.us...

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Chris Mirasola @chrismirasola.bsky.social · Aug 18

Excellent analysis as always!

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Chris Mirasola @chrismirasola.bsky.social · Aug 16

If you want to know more about the legal theory that’s supporting this WVNG deployment, I wrote a bit about it in the early days of the LA deployment.

Unpacking the Protective Power

The constitutional basis for Trump’s use of the military in LA has a long history but is ultimately unmoored from constitutional text.

www.lawfaremedia.org

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Chris Mirasola @chrismirasola.bsky.social · Aug 16

it’s all the more unchecked when performed by NG on duty under 33 usc 502f, who aren’t subject to the posse comitatus act. It’s the BLM deployment all over again, except now it hardly breaks the headlines (though i get it -we seem about to reward an illegal aggressive war).

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Chris Mirasola @chrismirasola.bsky.social · Aug 16

Yet more evidence why the executive branch’s theory of the protective power is so susceptible to abuse. There’s no evidentiary minimum that’s ever been asserted as legally required — just a swinging sword of Damocles hanging over any location with a federal presence.

West Virginia to Send Hundreds of State National Guard Troops to D.C.

www.nytimes.com

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

Many thanks to @lawfaremedia.org and @tylermcbrien.com for getting this posted so quickly! Although there are still questions about mission scope, rules for the use of force, and more, in many ways the damage has already been done. A totally antiquated area of law especially susceptible to abuse.

Lawfare @lawfaremedia.org · Aug 11

Following President Trump's announcement that he is deploying D.C. National Guard personnel, @chrismirasola.bsky.social explores the possible legal bases for the deployment and why statutory reform is needed.

Deploying the D.C. National Guard

The president’s concerning use of the D.C. National Guard relies on incredibly broad and outdated statutory law and a history of maximalist executive branch practice.

www.lawfaremedia.org

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

When the DCNG is acting under these authorities, it operates as the militia of DC, and isn't subject to the Posse Comitatus Act. Hard to say more about plausible duties until we get more from the White House. But if you want more on federal authority in DC, read this from @stevevladeck.bsky.social!

172. "Federalizing" D.C.

Like any federal enclave, the federal government has plenary power over the District of Columbia. But Congress has delegated most of that power to local officials; it would take new laws to undo that.

www.stevevladeck.com

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

I've always thought this list of duties was best read together to be limited to training (which @ the time of enactment would've included drills, inspections, parades, and the like). But OLC's read has been the basis for DCNG counterdrug operations for almost 40 yrs now. Much broader possible basis

Use of the National Guard to Support Drug Interdiction Efforts in the District of Columbia

www.justice.gov

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

2. Under § 49-102 the Commanding General (appointed by POTUS) can "order out any portion of the National Guard for such drills, inspections, parades, escort, or other duties, as he may deem proper." It's been OLC's position since 1989 that this authorizes operational assignments (link next)

§ 49–102. Prescribing drills. | D.C. Law Library

code.dccouncil.gov

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

There must be "a tumult, riot, mob, or a body of men acting together by force with attempt to commit a felony or to offer violence to persons or property, or by force or violence to break and resist the laws." No idea what a "tumult" is, and there's no riot or mob, but man the last bit is broad.

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

There are 2 paths for the deployment. 1. § 49-103 authorizes the DCNG to assist the mayor (unlikely?), US Marshal for DC (as an exec branch official, I think most likely), or the "National Capital Service Director" (not sure this still exists? Any know? See 40 USC 8502)

media.defense.gov

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

As many folks likely know, POTUS is the Commander-in-Chief of the DCNG, BY STATUTE. Since 1969, these STATUTORY powers have been delegated (primarily to SecDef) (link to that memo and a 2021 procedural modification in the next of whatever these text things are called).

Chapter 4. Composition, Organization, and Control. | D.C. Law Library

code.dccouncil.gov

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Chris Mirasola @chrismirasola.bsky.social · Aug 11

Lots of crucial details still needed on the forthcoming DC Natl Guard deployment in DC. But based on what we already know, two paths seem to be at play. Once again, incredibly old and over broad statutory text and maximalist exec branch practice conspire to give Trump a sad amount of runway here.

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