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Reposted by Joseph Nunn

Liza Goitein @lizagoitein.bsky.social · 2d

President Trump’s deployment of National Guard troops to Portland is off — for now. Last night, Judge Karin Immergut, a Trump appointee, issued a temporary restraining order prohibiting the deployment of ANY federalized National Guard forces in Portland. 1/7

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Reposted by Joseph Nunn

Brennan Center @brennancenter.org · 2d

A core principle of this nation is that the military should not be asked to turn its weapons against fellow Americans. We cannot allow this unprecedented militarization of American cities to become normalized. Read: wapo.st/4mQhNHq

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Reposted by Joseph Nunn

Liza Goitein @lizagoitein.bsky.social · 8d

This morning, President Trump and Secretary Hegseth spoke to 800 high-ranking generals and admirals who had been called away from their stations around the world. At the meeting, Trump said he’d told Hegseth he should use American cities as “training grounds” for the military. 1/6

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Reposted by Joseph Nunn

Brennan Center @brennancenter.org · Sep 5

The Posse Comitatus Act was created to limit when federal troops can be used against Americans. Four key reforms are needed to make sure the law holds up: bit.ly/47Qbde5

Why the Posse Comitatus Act Must Be Reformed

Significant exceptions and loopholes, along with a lack of enforcement mechanisms, undermine the law that prevents military involvement in law enforcement.

www.brennancenter.org

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Reposted by Joseph Nunn

Brennan Center @brennancenter.org · Sep 4

“What we are seeing from this president is an assault on the core principle against using the military as a domestic police force. That’s fundamentally at odds with democracy and individual freedom.” @lizagoitein.bsky.social on @slate.com's Amicus podcast.

Trump Wants to Send the National Guard Into Chicago. Here’s What the Law Actually Says About That.

The president can't legally apply his D.C. playbook to Chicago.

slate.com

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Joseph Nunn @josephanunn.bsky.social · Sep 2

What the ruling doesn't do is address the underlying problem--namely, the antiquated, vague, and poorly drafted statutes that leave room for the president to claim such broad, legally dubious authority to use the military domestically in the first place. (22/22) www.brennancenter.org/outdated-and...

Outdated and Dangerous

Antiquated laws from the 1700s and 1800s give the president tremendous power to use the military at home to quash protests and order mass arrests in times of war and domestic upheaval.

www.brennancenter.org

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Joseph Nunn @josephanunn.bsky.social · Sep 2

While this ruling is limited to California, and will undoubtedly be appealed, it nonetheless presents a path by which other states may push back against the Trump administration's unprecedented efforts to use the military for routine law enforcement inside the United States. (21/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Having concluded that the National Guard troops and Marines the Trump admin has deployed in California are subject to the PCA, and that the duties assigned to those troops violate the law, Judge Breyer granted California's request for an injunction which will go into force on Sept 12. (20/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

"...in numbers that match or outnumber law enforcement agents pervade the activities of those civilian agents." What's more, the duties assigned to the troops in California are considered law enforcement under DoD's own policy guidance (see page 19). (19/22) www.esd.whs.mil/Portals/54/D...

www.esd.whs.mil

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Joseph Nunn @josephanunn.bsky.social · Sep 2

That conclusion is consistent with established judicial tests for assessing whether the PCA has been violated. As Judge Breyer explained, the troops' conduct exercised "regulatory, proscriptive, and compulsory power on the surrounding public, and their participation in operations..." (18/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Accordingly, Judge Breyer ruled that the admin had not asserted a valid constitutional exception to the PCA. Furthermore, he found that the duties assigned to the troops in California (setting up perimeters, conducting crowd control, etc.) constituted "law enforcement" barred by the PCA. (17/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

On the contrary, through the Calling Forth Clause, the Constitution expressly grants *Congress* authority to regulate when, where, and how the military is used domestically. No inherent authority of the president (assuming it exists) could override this explicit grant of congressional power. (16/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Indeed, Youngstown makes clear that the president may only act contrary to a law enacted by Congress if the Constitution grants the president "conclusive and preclusive" authority over the subject at issue. That is exceedingly rare, and as Judge Breyer observes, it is not the case here. (15/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

As Judge Breyer explains, the Supreme Court's 1952 decision in Youngstown Sheet & Tube Co v. Sawyer is the lodestar for assessing these sorts of conflicts between the president and Congress. Under Youngstown, when the president and Congress disagree, the default rule is that Congress wins. (14/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

That means one of two things must be true: either the protective power does not override the PCA, or it does, and the PCA exceeds Congress's constitutional authority. It is for the courts to resolve this question by deciding whether Congress or the president has overstepped their power. (13/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

As he rightly points out, the PCA allows only for *express* exceptions. An inherent authority is by definition not express. Thus, the government's claimed constitutional exception does not satisfy the statutory requirements for a PCA exception. (12/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

The Trump administration also argued that the Constitution's Take Care Clause gives the president inherent authority to protect federal functions and property, and that this power overrides the restriction imposed by the PCA. Judge Breyer rejected this argument, too. (11/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

As he wrote, the government's interpretation of Section 12406 is entirely novel and has no basis in historical understandings of the statute (which is more than 100 years old). Moreover, he found that, if accepted, the government's argument would blow a gaping hole in the PCA. (10/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Turning to the law: The federal government argued that the statute Trump used to federalize the California National Guard, 10 USC 12406, is a statutory exception to the PCA. Judge Breyer rejected this argument. (9/22) www.law.cornell.edu/uscode/text/...

10 U.S. Code § 12406 - National Guard in Federal service: call

www.law.cornell.edu

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Second, that the troops in California accompanied federal civilian law enforcement personnel and set up perimeters, traffic control points, and engaged in crowd control in conjunction with federal civilian law enforcement operations. (8/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

In reaching this conclusion, Judge Breyer made two key factual findings: First, that the troops in California were instructed that, based on a claimed constitutional exception to the PCA, they could engage in security patrols, traffic control, crowd control, and riot control. (7/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Judge Breyer's decision presents a path for enforcing this crucial guardrail against presidential overreach by granting California's request for an injunction that bars the federal government from violating the PCA within the state. (6/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

In a few cases, criminal defendants alleging that military personnel participated in their arrests or the investigations into them in violation of the PCA have tried (and largely failed) to persuade courts to enforce the law by excluding evidence or throwing out tainted charges. (5/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Enacted in 1878, the PCA is a criminal statute. Yet no one has ever been convicted of violating it--not because there have been no violations, but because the Dept of Justice has little incentive to aggressively punish conduct by the Dept of Defense that the president may well have directed. (4/22)

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Joseph Nunn @josephanunn.bsky.social · Sep 2

Judge Breyer's decision is both historically and legally significant. The Posse Comitatus Act (PCA), which bars the federal armed forces from participating in civilian law enforcement unless doing so is expressly authorized by the Constitution or Congress, has long had an enforcement problem. (3/22)

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