President Donald Trump so far has sought to deploy National Guard and active-duty soldiers to five major Democratic-led cities across the U.S.: Washington, D.C.; Los Angeles; Chicago; Portland, Oregon and Memphis, Tennessee.
He also threatened future military interventions in several other cities, including Baltimore, New York, New Orleans, Oakland, San Francisco and St. Louis.
Arising from his deep-rooted desire to use the military as a police force, the deployments directly threaten the country’s longstanding democratic practice of constraining the use of soldiers in law enforcement.
How Trump has mobilized troops
Trump so far has relied on two statutes to mobilize National Guard troops: 10 U.S.C. 12406 (Title 10) and 32 U.S.C. 502(f) (Title 32).
Title 10: Allows the president to federalize state Guard troops when the country faces foreign invasion, when the U.S. government faces rebellion or when the president is unable to execute laws with regular resources.
- Using Title 10, Trump has so far federalized Guard troops from California, Oregon, Illinois and Texas.
- California and Texas troops federalized under Title 10 have been sent beyond their respective states into Illinois as part of Trump’s attempted deployment in Chicago.
Title 32: Allows the president or defense secretary to request that governors activate state Guard troops for federally funded missions. However, soldiers called up under Title 32 are in a “hybrid” status because they are neither under full state or federal control. The troops are under the command and control of their state governor, but their duty is federally funded and regulated.
- Responding to requests from Trump, GOP governors from nine states have agreed to activate their Guard troops under Title 32 for deployment in D.C.: Alabama, Georgia, Louisiana, Mississippi, South Carolina, South Dakota, West Virginia and Tennessee.
- Missouri and Tennessee Guard troops have also been activated under Title 32 to assist federal law enforcement officials in their respective states.
Separately, D.C. National Guard troops have also been deployed in the nation’s capital.
- However, their deployment was done through different authorities because Trump, as president, has direct command over the D.C. Guard.
Posse Comitatus: The key legal barrier before Trump
The Posse Comitatus Act (PCA), a nearly 150-year-old statute, is the chief obstacle to Trump’s wish to use the military for civilian policing. The law broadly bars the president from enforcing federal law through military force with few exceptions.
- Soldiers called into federal service under Title 10 are considered active-duty military and therefore are subject to PCA. They cannot engage in core law enforcement activities, such as searches, seizures and arrests.
- Soldiers activated under Title 32, because they are still controlled by governors, are not restricted by PCA and are not barred from participating in civilian law enforcement activities. However, this does not give the president a blank check to enforce law with Title 32 hybrid troops, legal experts have argued.
Through the deployments, Trump has attempted to get around the PCA by assigning them duties that approach direct law enforcement activity.
- A federal judge earlier this year found that the Trump administration violated the PCA by using troops to directly protect federal agents carrying out arrests, setting up perimeters and road blockades for law enforcement operations and, on at least two occasions, detained civilians.
Text by Jacob Knutson, Research by Adeline Tolle, Design by Madison Coviello.