The Real Problem Is How Trump Can Legally Use the Military

"The militarization of American cities, including Los Angeles, Portland, and Chicago, has brought home a perverse irony. Throughout the history of the United States, immigrants have come here to escape authoritarian governments. But, in the twenty-first century, it is Donald Trump's crackdowns on immigration, and on the protests against them, that are giving him momentum in the direction of ersatz dictatorship."

"At the nation's founding, James Madison warned that "a standing military force, with an overgrown Executive will not long be safe companions to liberty," because of the temptation to turn soldiers into "instruments of tyranny at home." The Constitution divides power over the military between the President, who is the Commander-in-Chief, and Congress, which funds and regulates the military, declares war, and provides "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.""

"In the Posse Comitatus Act of 1878, Congress spelled out that it is generally forbidden to use the military for civilian law enforcement. But, in a statute from 1956, Congress gave the President the authority to federalize any state's National Guard in the event of an "invasion by a foreign nation" or a "rebellion" against the federal government, or in cases when "the President is unable with the regular forces to execute the laws of the United States.""

American cities including Los Angeles, Portland, and Chicago have experienced increasing militarization through deployments of National Guard troops and marines to respond to protests. Immigrants historically fled authoritarian regimes, yet recent crackdowns on immigration and protest responses have empowered executive authority and raised fears of ersatz dictatorship. Constitutional checks divide military authority between the President and Congress and restrict domestic military law enforcement under the Posse Comitatus Act, but exceptions and a 1956 statute allow federalization of National Guard units during invasions, rebellions, or when regular forces are insufficient. Deployments have provoked further protests and intensified calls for troop interventions in additional cities.

Read at The New Yorker