Government

If Trump Violates Posse Comitatus, We'll Have To Pray We Still Have Generals Loyal To The Republic

We literally have to talk about the legal complexities of deploying the military on domestic soil, because we elected a despot.

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I suppose it wasn’t going to be long before Donald Trump casually tripped the wires of one of most basic protections against despotism: the Posse Comitatus Act. Signed by President Rutherford B. Hayes, Posse Comitatus prohibits the deployment of regular military to enforce domestic laws.

It’s military takeover repellent. At the point where troops are marching through your town to enforce… zoning laws… by leveling your house, you are living under a military dictatorship whether you call it one or not.

I don’t expect that President Trump understands that law, or cares why it’s there. He’s pissed that Ann Coulter didn’t send him an Easter card, and so he’s blurting random, untrue things about immigrants again. He seems to be under the impression that there is some kind of “caravan” of brown people bearing down on us from Mexico. Maybe they’re being led by Charlzie Theron down the Fury Road. Honestly who can know what’s in this man’s head.

I tend to freak out when I wake up in the morning and remember that Trump hasn’t been shackled in dungeon. But I reserve an extra gear for when he starts making unhinged national policy musing that he, more or less, has the power to actualize under his executive authority. This report in Politico is one of those times:

President Donald Trump said on Tuesday that he intended to deploy troops along the U.S.-Mexico border until a wall was built there, proposing an escalation of efforts to prevent people from entering the country illegally via the southern border…

“We are going to be guarding our border with our military. That’s a big step,” Trump said on Tuesday during a session at the White House with the leaders of Estonia, Latvia and Lithuania.

Yes, that is the President of the United States boasting about his intention to violate Posse Comitatus, while speaking to leaders of former Soviet Republics. When reached for comment, the Manchurian Candidate said: “It appears I’m not needed here.”

The bitch of it is, this might NOT be a slam dunk violation of the Posse Comitatus Act. There’s at least a colorable claim that using the military as a human wall to prevent foreign nationals from entering the country is not an enforcement of “domestic” policies. There’s an argument, that I’m sure Trump sycophants are making right now, that merely stationing the troops inside of America as a base of operations for their “foreign mission” of being racist jackboots is not a prima facie violation of the Act.

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One can imagine, for instance, the president stationing troops along the border in preparation for an invasion into Mexico. That wouldn’t be a violation of Posse Comitatus, that would just be the president starting a war in order to win an election (coming soon to a theater near you, I’m sure).

Moreover, one can also argue that, post 9/11, Posse Comitatus is a dead law walking. We know that our military is engaged in all kinds of “activities” on domestic soil, mainly under the guise of protecting us from terrorism. We know this, because occasionally they get busted for doing it.

And the armed forces act specifically allows the president to use the military on domestic soil for natural disasters, “terrorism” or “other incidents.” I do not think that the spirit of that authorization allows the military to grab civilians who don’t have their legal papers in order, but then again I don’t have an irrational hatred for brown people who are willing to work for less money than I am.

So Posse Comitatus could already be so vitiated that it’s not really going to be an effective precedent to prevent Trump from using the military anyway, and anywhere, he sees fit.

On paper, Trump has some arguments in defense of his border patrol scheme.

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But in practice, this will be a violation of the Posse Comitatus Act. If troops are really deployed on the border, one of three things will happen:

  • The soldiers will step foot in Mexico… which will be an ACT OF WAR on our part, and Mexico and any allies they can muster would be within their sovereign rights to harm our soldiers.
  • The soldiers will keep their feet on American soil, but fire their bullets into Mexico, murdering Mexican citizens. This situation has already happened and our Supreme Court has decided to dodge the issue, to our deep shame.
  • The soldiers will round-up immigrants who make it across the border, which will be a violation of the Act.

Think about a real situation. We don’t have enough troops to put a literal human wall between us and Mexico. Even if they stretch out their arms and hold hands, we don’t have the manpower. There will be gaps.

People fleeing poverty and desperation will exploit those gaps. Once those people cross the border, they are in violation of American domestic laws. We have non-military law enforcement to handle that. We have courts and judges to handle that. We have a civilian legal process that is supposed to be in charge of handling people who cross our borders illegally.

So the minute an army ranger is ordered to look behind him and grab a person already inside America, he will be used in violation of the Posse Comitatus Act.

Make no mistake, Trump intends to use the military to enforce domestic regulations, because he is tired of going through the process that is required of his domestic enforcement agencies. It is the very democratic principles that Trump abhors that’s making him think about using the military to enforce his policy goals at the point of a gun. CONGRESS WON’T FUND HIS WALL. Instead of working with and dealing with the legislative branch of government, he wants to use his powers as commander-in-chief to make it happen over their objection. That’s not “like” a military dictator, that IS military dictatorship.

This is how despots start to transition a civilian government into a military one. If he does this, it should be an impeachable offense — and we should pray that we still have generals loyal to the Republic and not the strongman in the White House.

And if he does this and it doesn’t result in immediate impeachment — if we let the bigotry of the Republican base blind us to this obvious violation free government, we’ll deserve every horrible thing we’re going to get.

Trump proposes sending troops to U.S.-Mexico border until wall is built [Politico]

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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