Federal Judge Sets Trial Over Trump’s Use of Military in Los Angeles

A federal judge set a three-day trial in August to determine if President Donald Trump’s ongoing use of the California National Guard and Marines in Los Angeles violates federal law.

The non-jury bench trial set by Judge Charles Breyer will run Aug. 11-13 and will address whether Trump’s use of the military in the second-largest city in the U.S. has violated the Posse Comitatus Act. The act criminalizes the use of the armed forces to enforce civilian laws under normal circumstances.

Though Trump officials said troops were being sent to Los Angeles to protect federal property  and personnel, soldiers have been authorized to accompany Immigration and Customs Enforcement (ICE) officials on immigration raids and temporarily detain civilians. Troops have also been used to assist the Drug Enforcement Administration’s routine counter-drug operations hundreds of miles away from the city.

Such arrangements heavily blur the line between military and civilian authority and get the military closer to direct law enforcement without invocation of the Insurrection Act, one of the president’s most powerful emergency authorities that temporarily suspends Posse Comitatus.

Last month, Trump cited an obscure, archaic federal statute to mobilize at least 300 California National Guard troops to counter largely peaceful protests in Los Angeles over aggressive immigration raids in the city led by ICE. Alongside the Guard troops, the Trump administration deployed around 700 Marines to the city as well.

The rarely used statute allows the president to mobilize the Guard when the country faces foreign invasion or rebellion or when the president is unable to execute laws with regular resources. Trump claimed that protests against ICE amounted to a rebellion against the U.S. government.

California sued, alleging that Trump’s mobilization order violated the statute. Breyer agreed with the state and granted a temporary restraining order blocking Trump’s seizure of California troops. 

Breyer’s order was short-lived. An appeals court days later stayed it and allowed Trump to keep using the troops, finding conditions in Los Angeles were sufficient for use of the statute and that Trump lawfully exercised his authority.

California also asked Breyer for a court order blocking the troops from being used in immigration raids or other law enforcement operations. Breyer, an appointee of President Bill Clinton, and the brother of former Supreme Court Justice Stephen Breyer, has been hesitant to make a determination on potential defiance to Posse Comitatus.

The judge told plaintiffs in a hearing last month that he didn’t want to speculate about what the government might do and would rather address a “real” violation. The upcoming trial will provide the state an opportunity to present evidence on potential violations.