Federal Law and the LA Riots

President Trump has the law firmly on his side, thanks to the Constitution

There is a long and important tradition in our country, expressed in the Posse Comitatus Act, against using the military for domestic law enforcement. (BTW, readers of “Political Questions” likely know that Congress enacted the PCA to withdraw federal troops from the South and end Reconstruction as part of the deal to resolve the 1876 elections — but that is another story). But there are exceptions, such as protecting the national government and its operations and breaking up resistance to federal law, which are authorized by the Constitution itself or in the Insurrection Act. The Supremacy Clause of the Constitution makes clear that federal law is superior to state law; California’s officials and residents have no right to block the enforcement of federal immigration policy, no matter how much they disagree with it.

Trump’s call up of the military therefore may be unprecedented in recent times, but it is not illegal. Whether his deployment falls within these laws depends on the facts we are seeing in LA. If there are individuals and groups who are impeding the enforcement of federal law, as it looks like there are, and the existing law enforcement authorities cannot quell them, as again appears to be the case, then the President can call up the military.

But it is also important to remember that the military is not there to enforce the laws — i.e., immigration law — but to protect federal officers and to break up illegal efforts to block the authority of national law. This is the same authority that Dwight Eisenhower used to have the 101st Airborne escort black children to school when southerners tried to block Brown v. Board of Education.

Those desegregation cases are the last time I can think of when the President used the military domestically in opposition to the wishes of the governor. Usually the President calls out the troops with the cooperation of the governor, which happened in LA itself during the Rodney King riots. But there have been times when governors have been tragically slow, as during Hurricane Katrina, or actually resistant to federal policy, as with desegregation, or, arguably, in this case. The scenes from the television coverage seem to present ample facts for the deployment of the military to protect ICE and DHS personnel who are carrying out their duty to enforce federal law, in the face of California officials who oppose federal immigration policy and have been unable to stop the lawlessness in LA.

Many of these same legal issues arose 20 years ago in the aftermath of Hurricane Katrina, when President Bush sent the Army to relieve New Orleans. I wrote about the matter then for the Los Angeles Times, which you can find here.