Late last week, the Ninth Circuit Court of Appeals decided that Donald Trump’s deployment of federal troops to Los Angeles could continue while a challenge by California Gov. Gavin Newsom moved through the courts. But by deploying more than 4,000 National Guard members and at least 700 Marines to the heart of LA, Trump is treading, at best, into a gray area.
“It’s a legal authority that is somewhat obscure and murky,” says Mark Nevitt, an associate professor of law at Emory University, who previously served twenty years in the Navy as an aviator and lawyer with the Navy Judge Advocate General’s Corps. Since 2016, Nevitt has been advocating for reform of the Posse Comitatus Act, the Insurrection Act, and presidential emergency powers.
The Posse Comitatus Act prevents federal military forces from operating as law enforcement—that is, other than the exceptions Congress and the Constitution carve out. The most recognized exception is the Insurrection Act, last invoked in 1992 by President George H.W. Bush in response to the Los Angeles riots over the beating of Black driver Rodney King and the acquittal of the officers who attacked him; before that, it was widely invoked in the 1950s and ‘60s against Civil Rights Movement protests.
“The Marines did what they thought was required— which was laying down covering fire into this person’s apartment in Los Angeles.”
While Trump may or may not invoke the Insurrection Act to squash dissenting protesters, Nevitt is also concerned about something far less well understood: federal 287(g) agreements, which—behind the lusterless name—give local law enforcement agencies authority to assist with federal immigration operations.
In other words, a shadow army of police working for ICE.
Nevitt and I spoke about the recent deployment of troops to LA, as well as his broader concerns surrounding Trump’s immigration crackdown.
What are your thoughts on the recent deployment of the military to Los Angeles?
Historically, this country has sort of an allergic reaction, for good reason, for having the military being overly involved in policing. So what’s happening now is concerning. It’s sort of an escalatory measure with the 4,000 National Guard as well as 700 Marines. What makes this somewhat unique is that the governor doesn’t really want the National Guard there, or at least the California National Guard federalized in that capacity—in most instances, the governor is consenting, or even requesting, the president to assist in enforcing the law in that situation. Most famously, you saw that in 1992, when [Republican] California Gov. Pete Wilson, at some point during the LA riots, essentially requested President Bush to sort of come in and help him out.
What is your main concern with Marines being deployed domestically?
The Marines are trained in more of a combat-type mindset. Rules of engagement for operating in a more hostile environment. The concern is that moving from more of that combat mindset to a domestic law enforcement mindset is a shift in culture, shift in training, just a shift in how you perform your operations. I would be surprised if any number of those 700 Marines had done anything like this before. There’s probably not a lot of internal unit expertise that you can rely upon. When you go to Iraq, when you go to Afghanistan, you rely upon the gunnery sergeant who has been there for one, two, three tours and kind of shows you the ropes.They’re doing the best they can, and they’re well trained—the finest fighting force in the world, the US Marines—but it’s a challenging environment and a very unique mission.
How else does training and terminology differ between law enforcement and the military?
“Rather than defending civil liberties and civil protections, you’re turned inward to potentially hinder [them].”
There’s different terminology and just different ways to think. We talked about [rules of engagement] vs. what’s called “rules for use of force.” In LA [in 1992], there were Marines who were accompanying the Los Angeles Police Department for a domestic situation and LAPD officers knocked on the door and they asked the Marines to essentially “cover me,” which means one thing in a law enforcement context. Essentially, it means take your gun off of safety and be ready to take action if needed. And in the military context, “cover me” means, essentially, lay down covering fire to cover the advancement of troops.
So the Marines did what they thought was required, which was laying down covering fire into this person’s apartment in Los Angeles. I think 200 bullets were splayed. Thank God no one was hurt or injured, but it just kind of shows a disconnect between the combat versus law enforcement. I don’t think that was ever known until much later.
Without Gov. Newsom’s approval, are these deployments even legal?
The legal authority that’s being used for this, it’s a legal authority that is somewhat obscure and murky. California Gov. Newsom is basically making an argument along the lines of, look, in this statute, there is a provision that says the president can federalize the National Guard if there was a rebellion. Gov. Newsom believes there’s not a rebellion in Los Angeles. By this scope, and what I’ve seen, it strikes me as not a full-blown rebellion or insurrection, but there is some lawlessness happening in parts with Molotov cocktails, and things along those lines.
So [Newsom] is arguing, essentially, that the trigger to federalize the guard has not been met, and [California] also has a really unique provision in the law, which essentially says that the orders to the California National Guard upon federalization flow through the state governor. So the law itself doesn’t even seem to contemplate a situation where the governor doesn’t want the guard federalized, right?
It’s just sloppy lawmaking, and Congress hasn’t updated the law. What do you do when the President is trying to act contra to the governor, but the governor has the statutory authority to issue orders to the newly federalized California National Guard? It’s just a mess.
What barriers are there to invoking the Insurrection Act as president?
The statute itself doesn’t define insurrection or rebellion, so as someone who wants to maximize their authority, you can likely find a legal basis to activate the Insurrection Act. The insurrection act is really the final tool. So once you do that, there’s really nothing else you can do as the president.
From a veteran’s perspective, how do you feel about the military taking part in domestic law enforcement?
I joined the military, a lot of my friends and colleagues joined the military, to protect Americans. Essentially being turned as a law enforcer or being used against your neighbor, that’s just a different role for the military. Rather than defending civil liberties and civil protections, you’re turned inward to potentially hinder civil liberties, civil protections. That’s just a different role, and I think that makes a lot of military members uncomfortable, because that’s not what they signed up for.
“You basically have a shadow immigration force happening in plain sight.”
What do you wish people would pay more attention to?
One thing I will say that has not gotten enough attention here is the use of what’s called 287(g) agreements. These are agreements that are negotiated as signed between the Department of Homeland Security and state and federal law enforcement agencies. Trump’s Department of Homeland Security has signed over seven hundred 287(g) agreements with law enforcement agencies across 40 states, and this essentially supercharges and empowers these local law enforcement to have a major role in federal immigration enforcement. I wish more people would pay attention to that, because you basically have a shadow immigration force happening in plain sight. At the beginning of the Trump administration, there were maybe 100 to 150 agreements, and that’s quadrupled in four months. It’s going to be approaching a thousand here by the end of the summer—that is a stunning, stunning, increase.
This interview has been lightly edited and condensed for clarity.
For more on this topic, listen to last week’s episode of “More To The Story” from Reveal.
This post has been syndicated from Mother Jones, where it was published under this address.