President Trump drew heavy criticism for calling up the California National Guard to confront anti-ICE rioting in Los Angeles in July. On Sept. 3, U.S. District Judge Charles Breyer blocked the move, claiming it violated the Posse Comitatus Act of 1878. He delayed his order until Sept. 12, but the administration immediately appealed, and the Ninth Circuit has already granted a partial stay while the case moves forward.
Critics insist Trump is misusing the military as some kind of “secret police.” They invoke the Posse Comitatus Act as if it were an absolute ban on military involvement in domestic affairs. That is flatly wrong. The Act does not prohibit the president from using the Army, Marines, or National Guard to enforce federal law. It simply requires that such forces be deployed under the president’s authority, not at the whim of a sheriff or local marshal.
The real danger comes not from Trump’s use of the National Guard, but from a judiciary willing to invent limits the Constitution never imposed.
The Constitution itself grants the president this power. Article IV, Section 4 reads:
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
Congress reinforced that authority in the Insurrection Act of 1807, which authorized the president to use the Army when it became “impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings.” In short: When mobs threaten federal law, the president has the duty — and the power — to act.
What Posse Comitatus really meant
Before 1878, federal marshals could deputize Army units as a local posse. That pulled soldiers out of their chain of command and placed them under partisan officials. Officers objected, rightly fearing the practice would corrupt the Army. They welcomed congressional intervention.
The Posse Comitatus Act corrected that flaw. It barred the military from being drafted by civil authorities except when the Constitution or Congress explicitly authorized it. The Act did not strip the president of power. It reaffirmed that only the president, acting under constitutional authority, could commit troops to restore order.
History bears this out. The U.S. military has intervened in domestic affairs 167 times since America’s founding. Soldiers put down the Whiskey Rebellion in the 1790s, enforced fugitive slave laws in the 1850s, and captured John Brown at Harpers Ferry in 1859. After the Civil War, troops secured polling places so freedmen could vote. The Act was not written to stop such uses, but to prevent local abuse.
As scholar John Brinkerhoff explained in 2002, “All that [the Posse Comitatus Act] really did was to repeal a doctrine whose only substantial foundation was an opinion by an attorney general. … The president’s power to use both regulars and militia remained undisturbed.”
Why Breyer is wrong
Judge Breyer’s ruling misreads both history and law. By treating Posse Comitatus as a blanket prohibition, he ignores the Constitution and the Insurrection Act. His injunction assumes any federal troop support is unlawful. But the law says otherwise: Troops cannot be used under lesser authority than the president’s. Trump acted as president. That is the highest authority the law contemplates.
The Ninth Circuit has already acknowledged the seriousness of the case by issuing a partial stay. That matters. Pulling remaining troops before the courts finish their review risks chaos. Keeping them in place while the appeal proceeds protects public order.
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Photo by SAHAB ZARIBAF/Middle East Images/AFP via Getty Images
Prudence, not prohibition
The Posse Comitatus Act never emasculated the presidency. It preserved the president’s authority while removing soldiers from the clutches of local sheriffs. The only real limitation is prudence. Presidents must decide when the threat justifies force and when restraint serves the nation better.
I have opposed proposals to use the military in the so-called war on drugs and other ill-considered campaigns. Prudence matters. But the Constitution is clear: When federal law is under assault, the president can act.
The real danger comes not from Trump’s use of the National Guard, but from a judiciary willing to invent limits the Constitution never imposed. Los Angeles cannot be allowed to burn while mobs terrorize federal officers. The president has the duty to restore order.
That is why the administration is right to appeal. The courts should correct this error and reaffirm what the Constitution already guarantees: the president’s authority to protect the republic against domestic violence.
Opinion & analysis, Opinion, Posse comitatus, Insurrection act, Insurrection act of 1807, Anti-ice mobs, Anti-ice riots, Constitution, Charles breyer, Donald trump, Illegal immigration, Law and order, National guard, Federal court, Ninth circuit, Whiskey rebellion, Civil war, Article ii
