The Posse Comitatus Act looms over President Trump’s determination to take over the Washington, D.C. police, his earlier determination to imagine management of the California Nationwide Guard, and the redistricting battle in Texas.
On August 11, The White Home issued a presidential memoranda titled “Restoring Legislation and Order within the District of Columbia” which included these key passages:
The native authorities of the District of Columbia has misplaced management of public order and security within the metropolis, as evidenced by the 2 embassy staffers who had been murdered in Might, the Congressional intern who was fatally shot a brief distance from the White Home in June, and the Administration staffer who was mercilessly crushed by a violent mob days in the past. Residents, vacationers, and employees alike are unable to stay peacefully within the Nation’s capital, which is underneath siege from violent crime. It’s a level of nationwide shame that Washington, D.C., has a violent crime charge that’s greater than a few of the most harmful locations on this planet. It’s my obligation to our residents and Federal staff to safe the protection and the peaceable functioning of our Nation, the Federal Authorities, and our metropolis.
Mobilizing the District of Columbia Nationwide Guard. Pursuant to my authority underneath the Structure and legal guidelines of the US and the District of Columbia, I direct the Secretary of Protection to mobilize the District of Columbia Nationwide Guard and order members to energetic service, in such numbers as he deems obligatory, to deal with the epidemic of crime in our Nation’s capital. The mobilization and period of obligation shall stay in impact till I decide that situations of legislation and order have been restored within the District of Columbia. Additional, I direct the Secretary of Protection to coordinate with State Governors and authorize the orders of any extra members of the Nationwide Guard to energetic service, as he deems obligatory and applicable, to reinforce this mission.
Aficionados of incipient fascism is perhaps a bit upset within the rhetoric in comparison with this banger from April:
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— Nat Wilson Turner (@natwilsonturner) August 13, 2025
Possibly the extra restrained tone is a perform of classes discovered within the California deployment which is now the topic of litigation primarily based on the Reconstruction Period Posse Comatitus Act.
Or perhaps it’s boiler plate primarily based on Trump’s said plans to make use of the Nationwide Guard to “take again” different cities corresponding to Chicago, Los Angeles, New York, Baltimore and Oakland.
Critics had been fast to note that every metropolis named Trump has a Black mayor.
Trump has additionally tasked the Pentagon with making a “navy ‘response power’ for civil unrest.” The Washington Put up has particulars:
The Trump administration is evaluating plans that may set up a “Home Civil Disturbance Fast Response Drive” composed of tons of of Nationwide Guard troops tasked with quickly deploying into American cities going through protests or different unrest, in keeping with inside Pentagon paperwork reviewed by The Washington Put up.
The plan requires 600 troops to be on standby always to allow them to deploy in as little as one hour, the paperwork say. They might be cut up into two teams of 300 and stationed at navy bases in Alabama and Arizona, with purview of areas east and west of the Mississippi River, respectively.
Value projections outlined within the paperwork point out that such a mission, if the proposal is adopted, may stretch into the tons of of hundreds of thousands of {dollars} ought to navy plane and aircrews even be required to be prepared around-the-clock.
In the meantime in Texas, Trump’s acolytes try to criminalize Democratic opposition to the unprecedented mid-decade redistricting plan.
I’ll have extra on that additional down, however let’s have a look at the massive image first.
Steven D. Schwinn of the John Marshall Legislation College lays out the constitutional implications of Trump’s phrases and actions:
These assaults observe a standard plan of action. First, President Trump lodges an aggressive and even outlandish constitutional declare in help of a brand new controversial coverage. Typically, his declare, if in the end accepted, would dangerously aggrandize the facility of the presidency on the expense of the coordinate branches and the states in violation of the separation of powers and federalism. Subsequent, he adjusts his declare, and his coverage, in response to push-back from Congress, the courts, or the states. However he does so solely begrudgingly, typically leaving a path of injury to our structural Structure in his wake. Lastly, he however achieves his authentic coverage aim, or a lot of it, by additional abusing the coordinate branches and the states.
Along with following a standard plan of action, President Trump’s assaults even have a standard characteristic: They exploit the comparative institutional strengths of the presidency and the comparative institutional weaknesses of the coordinate branches and the states. President Trump is all too conscious that the trendy president wields monumental energy. On the similar time, he realizes that Congress, the courts, and the states typically lack efficient institutional powers or cooperative capability to rein him in. (And even when efficient institutional powers could exist, they are often annoyed or undermined when the coordinate branches or the states share President Trump’s political targets.) By exploiting the institutional strengths of the presidency and the institutional weaknesses of the coordinate branches and the states, President Trump can but additional aggrandize his personal energy on the expense of Congress, the courts, and the states.
Re: Trump’s “D.C. takeover,” His rhetoric at his information convention was racially charged and alarming:
“It’s turning into a scenario of full and whole lawlessness. We’ll do away with the slums, too. We’ve got slums right here. We’ll do away with them. I do know it’s not politically appropriate. You’ll say, ‘Oh, so horrible.’ No, we’re eliminating the slums the place they stay.”
No matter is driving Trump’s actions, it’s not crime information.
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— Nat Wilson Turner (@natwilsonturner) August 13, 2025
It also needs to be famous that Joe Biden campaigned on a promise to grant D.C. statehood or no less than expanded house rule however did the alternative in workplace.
Trump supporters like podcaster Benny Johnson amplified and expanded on Trump’s rhetoric, telling his 5.5 miillion YouTube subscribers it’s time for ethnic cleaning within the nation’s capitol:
I consider whole neighborhoods, in all probability, have to be emptied, have to be bulldozed. I consider that there are locations which are so crime-ridden and so infested that you just simply must — such as you’re simply gonna should crack down. You’re going to should do the job, and also you’re going to should get the crime out of Washington. That’s my private expertise.
To date, the fact isn’t fairly that dramatic. From The New York Occasions:
A couple of dozen members of the Nationwide Guard appeared in 5 navy autos close to the Washington Monument because the solar set, a stark juxtaposition to a peaceable night scene of individuals jogging by with headphones and strolling their canines. An Military official mentioned troops had been persevering with to assemble on the D.C. Armory and had been anticipated to deploy round nationwide monuments, and close to a U.S. Park Police facility within the Anacostia neighborhood of southeast Washington.
Mr. Trump on Monday described the nation’s capital in apocalyptic phrases as a crime-infested wasteland — an outline that ignores the extent to which crime has been falling within the metropolis during the last two years. But it surely stays unclear whether or not the eventual present of power will match the president’s rhetoric.
The preliminary deployment close to the Washington Monument, no less than, typically resembled one thing much less fearsome, with troops snapping photographs of themselves with guests. They left roughly two hours after they arrived.
“We simply did a presence patrol to be amongst the individuals, to be seen,” Grasp Sgt. Cory Boroff mentioned as he stood close to a Humvee. “Of the individuals, for the individuals in D.C.,” he added. He mentioned he didn’t know the place they might be headed subsequent.…Ms. Leavitt boasted {that a} federal activity power, which incorporates some native officers, made 23 arrests on Monday night in reference to a spread of crimes. In Washington, a metropolis of roughly 700,000 individuals, the Metropolitan Police Division makes a median of 68 arrests a day, officers mentioned. Metropolis officers mentioned the Nationwide Guard troops wouldn’t have the authority to make arrests.
In the meantime the implications of Trump’s April California caper proceed to mount.
Beginning with the California legislation go well with:
California Legal professional Basic Rob Bonta in the present day issued an announcement forward of trial starting tomorrow at 10:00 AM PT within the U.S. District Court docket for the Northern District of California in California’s lawsuit difficult the illegal use of federalized California Nationwide Guard troops for civilian legislation enforcement in Los Angeles in violation of the Posse Comitatus Act. Legal professional Basic Bonta and California Governor Gavin Newsom sued the Trump Administration in June after President Trump despatched federalized California Nationwide Guard members and Marines into Los Angeles communities to patrol and interact in different legislation enforcement exercise prohibited by the Posse Comitatus Act. He did so over the objections of the Governor, towards the desires of native legislation enforcement, and for causes unsupported by situations on the bottom.
“Two months in the past, the federal authorities deployed navy troops to the streets of Los Angeles for the needs of political theater and public intimidation. This harmful transfer has no precedent in American historical past, erodes belief between the American navy and the general public, and pulls our servicemembers away from their very important function in combating wildfires and tackling the fentanyl epidemic,” mentioned Legal professional Basic Bonta. “As we speak, 300 federalized California Nationwide Guard members stay instruments within the President’s recreation, and the Trump Administration seeks to advance the argument that there must be no limits on what federal troops can do. However that’s not what our legislation permits. We start trial with the information and the legislation on our facet – and we stay up for making our case in courtroom.”
At trial, California will argue that the Trump Administration’s determination to embed federalized California Nationwide Guard members and Marines inside a home law-enforcement company — the federal Division of Homeland Safety (DHS) and its Immigration and Customs Enforcement (ICE) company— and to deploy them extensively all through the state, all whereas asserting there are not any limits on what these federal troops can do, is unprecedented and unlawful. In making an attempt to justify the unjustifiable, the Trump Administration ignores each the clear exams that courts have established over a long time for decoding the Posse Comitatus Act and figuring out what conduct violates the Act, in addition to profession navy officers’ understanding of that Act.
There are additionally allegations that Trump’s actions in California had a destructive influence on morale:
Three totally different advocacy organisations representing navy households mentioned they’d heard from dozens of affected service members who expressed discomfort about being drawn right into a home policing operation outdoors their regular area of operations. The teams mentioned they’ve heard no countervailing opinions.
“The sentiment throughout the board proper now could be that deploying navy power towards our personal communities isn’t the form of nationwide safety we signed up for,” mentioned Sarah Streyder of the Safe Households Initiative, which represents the pursuits of navy spouses, youngsters and veterans.
“Households are scared not only for their family members’ security, though that’s an enormous concern, but in addition for what their service is getting used to justify.”
Chris Purdy of the Chamberlain Community, whose said mission is to “mobilize and empower veterans to guard democracy”, mentioned he had heard comparable issues from half a dozen nationwide guard members. “Morale isn’t nice, is the quote I maintain listening to,” he mentioned.
It’s deeply ironic that California is basing its case on the Posse Comatitus Act, an artifact of the top of Reconstruction:
To make sure that racist teams such because the Ku Klux Klan wouldn’t intimidate Republican voters, Federal troops had been stationed all through polling locations within the South. Within the closest election in historical past, the Southern-favoured Democrat Samuel Tilden misplaced to Republican candidate Rutherford Hayes by a single electoral school vote. The presence of federal troops throughout the election made many Southerners see the navy supervision as a tyrannical use of power by Republicans to stay in energy. The continuous escalation of tensions between the troopers and Southerners led to the Compromise of 1877, whereby the newly-elected Hayes was compelled to withdraw the military from the South. Not glad with this withdrawal, in 1878 the Democrats launched the Posse Comitatus Act.
Whereas the Democrats managed the Home following the 1874 midterm election, the Republicans nonetheless held a majority inside the Senate. Surprisingly, many Republicans had been sympathetic to the Act. When introducing the invoice, Consultant William Kimmel of Maryland skilfully depicted it as one other instance of People rejecting the influences of totalitarianism. He aligned his place with the Founding Fathers’ fears of a standing military and its capability to implement martial legislation by drawing reference to Washington’s use of a civilian militia as a substitute of the Military to quell the 1794 Whisky Rise up, which was applauded by the Congress. Kimmel satisfied many Republicans that this evidenced a historical past of the federal authorities disapproving using the navy for civilian legislation enforcement. The Act stipulated that using the navy as a posse comitatus was criminalised except expressly authorised by an Act of Congress or the Structure. Using the navy to fight civil riot underneath the 1807 Rebel Act was included as a statutory exception. President Hayes, satisfied that the thirteenth, 14th and fifteenth Amendments would guarantee black suffrage within the South, signed the Posse Comitatus Act into ratification in June 1878.
Not surprisingly, the Posse Comatitus Act has main loopholes and limitations:
One important loophole is the District of Columbia Nationwide Guard. Whereas all different Nationwide Guards are commanded by their state or territorial governors, the DC Guard falls underneath the president’s direct management always. Though it will possibly act as a federal power, the Division of Justice has lengthy claimed it will possibly additionally function as a non-federal “militia” that’s not constrained by the Posse Comitatus Act. This implies presidents can theoretically use the DC Guard for legislation enforcement at any time when they select.
One other loophole is Part 502(f) of Title 32 of the U.S. Code, which permits the Nationwide Guard to hold out federal missions on the request of the president or secretary of protection whereas remaining underneath state management, thus bypassing the Posse Comitatus Act. Whereas the remainder of Part 502 is principally used for coaching missions, there are not any standards limiting what sorts of missions Subsection f can be utilized for. The Trump administration exploited this license a couple of years in the past when it invited Nationwide Guard troops from 11 states into DC to suppress protests following the homicide of George Floyd. This unprecedented motion was carried out with out invoking the Rebel Act, because the president may merely ask sympathetic state governors to offer the orders on his behalf.
To make issues worse, the Posse Comitatus Act lacks an efficient enforcement mechanism. The legislation is a prison statute, but there’s no actual menace of prosecution for violating it in apply. Nobody has ever been convicted for violating the Posse Comitatus Act, and solely two individuals have ever been prosecuted — each greater than 140 years in the past.
There has already been some attention-grabbing testimony within the trial, through Democracy Docket:
The second day of trial once more noticed testimony from Maj. Gen. Scott Sherman, the pinnacle of Job Drive 51, which oversaw the Nationwide Guard troops and Marines concerned within the navy mission to Los Angeles.
Sherman mentioned troopers got coaching supplies on Posse Comitatus. These supplies included an inventory of particular actions prohibited by the act: Safety patrols, site visitors management, crowd management and riot management.
Although the act prohibits members of the navy from finishing up sure actions, Sherman mentioned there was a “constitutional exception” that permitted such actions underneath sure circumstances.…After stressing that he’s not a lawyer, Sherman mentioned Division of Protection attorneys suggested him that the navy was allowed to hold out prohibited actions as a result of such acts had been “in line” with Trump’s order for troops to guard federal property and personnel.…The recommendation Sherman mentioned he obtained seems to derive from an expansive controversial idea of government authority referred to as the “protecting energy.” It asserts that presidents have inherent constitutional authority to make use of the navy to guard federal property, personnel and features and that such actions can not violate Posse Comitatus.
The idea, which isn’t explicitly discovered within the Structure however is as a substitute a authorized interpretation of the Take Care Clause, served as the premise of Trump’s deployment of Nationwide Guard troops and Marines to Los Angeles.
Politico had extra on Sherman’s testimony:
Probably the most revelatory testimony of the day got here from Sherman, who initially commanded the Guard troops Trump deployed to Los Angeles. He recalled his opposition to a request by immigration authorities for navy help throughout an operation slated for Father’s Day within the metropolis’s MacArthur Park.
Intelligence, Sherman recalled, confirmed a minimal menace to federal immigration brokers, and the proposed operation would have despatched navy autos by the middle of the park. However when he expressed misgivings, Gregory Bovino, the chief patrol agent of the Customs and Border Patrol’s El Centro sector — who has taken on a number one function within the Los Angeles immigration crackdown — pushed again strongly, Sherman recalled.
Requested by a lawyer for California if Bovino questioned Sherman’s loyalty to the U.S. over the difficulty, Sherman answered merely “sure” and didn’t elaborate.
In the meantime in Texas, Trump acolyte Legal professional Basic (and U.S. Senate candidate) Ken Paxton is elevating the stakes for Texas Democrats making an attempt to withstand redistricting:
Texas Legal professional Basic Ken Paxton on Tuesday requested a Tarrant County choose to jail former U.S. Rep. Beto O’Rourke, in one other escalation in Republicans’ broader effort to place an finish to Texas Democrats’ walkout over a brand new congressional map.
Paxton sued O’Rourke and his political group, Powered by Individuals, final week, arguing that the group was deceptively fundraising for and illegally supporting Texas Democrats’ walkout. Tarrant County District Choose Megan Fahey shortly granted Paxton’s request to briefly block O’Rourke and Powered by Individuals from fundraising for Democrats or spending cash to cowl their bills.
On Tuesday, Paxton claimed that O’Rourke had violated that non permanent injunction at a Fort Value rally Saturday, when he advised the group, “There are not any refs on this recreation, fuck the foundations.”
In response to a video of the occasion, O’Rourke appeared to say that phrase after urging the group to help retaliatory redistricting in different blue states — not in relation to the injunction.
Paxton and Presidential aspirant Governor Greg Abbott have beforehand sought to have quorum breaking Democrats thrown out of workplace.
The Ettingermentum e-newsletter explains a few of the context of the unprecedented nationwide redistricting battle and the way Dems may strike again:
…nothing even remotely like what we’re seeing now has ever occurred earlier than. Traditionally talking, mid-decade redistricting nearly at all times solely occurs on account of courtroom orders. When it has occurred on a purely partisan foundation, it has by no means been on a systemic, nationally-organized scale involving tit-for-tat guarantees of retaliation. Due to this, the mainstream media—at all times inadequate in its protection of gerrymandering even in one of the best of occasions—has up to now been incapable of overlaying these fast developments in a coherent approach.
How Democrats Might Strike Again:
California: 5-9 seats, however provided that voters approve of a constitutional referendum.
New York: 3 seats or extra, however not till 2028.
Maryland: One seat, however potential authorized challenges make a brand new map unlikely.
New Jersey: 1-2 seats, however it might already be too late.
Illinois: 1-3 seats, however one is essentially the most practical.
Minimal instantly achievable positive aspects earlier than 2026: Six seats.
Most attainable positive aspects earlier than 2026: Fifteen seats.
He additionally notes that the Texas Democrats have already given up:
Democrats consider they’ve completed their mission by killing the primary particular session and by elevating nationwide consciousness concerning the mid-decade redistricting effort.
It’s unclear which day they are going to be in Austin on the Capitol, however they stress that they are going to push for Hill Nation flooding reduction to be the precedence.
After our preliminary reporting on-line and on tv, a spokesperson for the Texas Democratic Caucus despatched the next assertion to ABC Information:
“Members are nonetheless assessing their methods going ahead and are in a non-public assembly to make selections about future plans presently,” he wrote. “If and when Texas Home Democrats breaking quorum determine to go house is squarely depending on the actions the Governor, Speaker, and Texas Republicans in cost make with regard to prioritizing flood victims over redistricting that hurts Texans.”
That form of sums up the scenario in a nutshell.
Trump and the GOP are aggressively pushing Constitutional limits whereas Democrats are placing up a principally performative opposition.
Regardless of Trump’s imploding reputation, the Democrats are even much less fashionable and in contrast to Trump, haven’t any competing imaginative and prescient of governance.
Count on the slide right into a post-Constitutional order to proceed.
I’ll give Ralph Nader the final phrase, if solely as a result of his strident doomerism appears a bit over-the-top:
The approaching better risks from Trump will come when he pushes his lawless, dictatorial envelope up to now, so furiously, so outrageously, that it turns his GOP valets in Congress and the GOP-dominated US Supreme Court docket towards him. Add plunging polls, a stagflation financial system, and impeachment, and elimination from workplace would develop into a political necessity for the GOP in 2026 and past. In 1974, the far lesser Watergate transgressions by President Richard Nixon resulted in Republican Senators’ demanding Tough Dick’s resignation from workplace.…If Trump had been to be impeached and faraway from workplace, would he attempt to keep in workplace? Right here is the place an actual constitutional explosion can happen. He must be escorted from the White Home by US Marshals who’re underneath the course of toady Legal professional Basic Pam Bondi. The Supreme Court docket has held that the Structure grants “the only real Energy” to attempt impeachments within the Senate and nowhere else. Thus, the courts would offer no treatment to a lawless president wanting to remain in energy.…Little restraint on lawless Trump from the Congress and the Supreme Court docket, and solely feeble, cowardly responses by the flailing Democratic Get together (and the Bar Associations for that matter) to this point, make for the specter of violent anarchy and terror.
Trump has fatalistic traits. Armageddon shapes his final worldview. Ponder that for a dictator together with his finger on greater than the nuclear set off.
Right here’s hoping Ralph’s overstating his case.
