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insurrection act
Trump in Los Angeles Is Exactly What We Have Been Warning About
This is a critical moment in U.S. history, and it demands that we stand strong in our opposition to the administration’s reckless and unlawful use of military force.
Jun 11, 2025
For years, we have warned against the danger of an unchecked president turning the military against American civilians.
In an extraordinary show of force, President Trump has federalized 4,000 members of the California National Guard and deployed 300 of them, in addition to deploying 700 Marines, to quell protests in the Los Angeles area. All over the objections of Gov. Gavin Newsom.
Why this abrupt, camera-ready escalation? White House Deputy Chief of Staff Stephen Miller posted a video of a peaceful protest parade. “If we don’t fix this, we don’t have a country,” he shuddered. “Pass the BBB” — the budget bill now facing turbulence in Congress.
Trump’s administration is spoiling for a fight. It pops out emergency declarations like a Pez dispenser. It is also relying on flimsy legal justifications, as my colleagues have pointed out.
Presidents have deployed troops to control civil unrest only 30 times before in U.S. history. The Posse Comitatus Act generally prohibits federal troops from engaging in civilian law enforcement. Soldiers are trained to defeat an enemy, not to de-escalate protests.
The situation in Los Angeles is bad. What might come next could be worse.
The last time that a president sent in the Guard without a clear request from a state’s governor was 1965, when troops were used to protect the voting rights march from Selma to Montgomery. (And even in that case, George Wallace waffled.)
To be clear, violent protests are not acceptable or productive. The federal government should be unobstructed in carrying out its lawful duties. Of course, the specter of masked ICE agents lurking in the lobbies of immigration courts, as has happened here in New York City, is itself willfully provocative.
In fact, in Los Angeles, protests have been overwhelmingly peaceful. The LAPD — hardly a department of pushovers — has been adamant that it has the situation under control. Not surprisingly, the troops have only fanned the protests. Newsom formally requested that the administration rescind the deployment, saying that it is “inflaming tensions while pulling resources from where they’re actually needed.”
The situation in Los Angeles is bad. What might come next could be worse.
Trump’s executive order authorizes deployment of the Guard “at locations where protests against [ICE] functions are occurring or are likely to occur.” Where might that be? “We’re gonna have troops everywhere,” Trump declared.
As my colleague Elizabeth Goitein notes, “No president has ever federalized the National Guard for purposes of responding to potential future civil unrest anywhere in the country. Preemptive deployment is literally the opposite of deployment as a last resort. It would be a shocking abuse of power and the law.”
The most powerful repressive tool would be the Insurrection Act — a law that lets presidents deploy troops to suppress a rebellion or insurrection or curb domestic violence in extreme scenarios. Trump threatened to invoke it against Democratic-run cities during his 2024 campaign.
The Insurrection Act is, unfortunately, a mess of a law. Key words such as “rebellion” and “insurrection” are left undefined. Courts have given presidents a wide berth. Trump winked at this law by calling the protesters “insurrectionists.”
He has so far chosen to rely on a different law — one that has never been used to quell civil unrest without an accompanying Insurrection Act invocation. The administration claims that it is invoking this law only to protect federal personnel and property. But Homeland Security Secretary Kristi Noem has requested that soldiers be authorized to detain and search protesters, functions normally prohibited by the Posse Comitatus Act.
It’s clear that Trump wants to use this showdown to expand enforcement powers.
The week before he stages a strongman-style military parade along the National Mall — complete with tanks, missiles, and military aircraft — Trump has claimed the right to preemptively authorize deployment of the military all across America.
That should be chilling to most Americans, who have enjoyed a firm line between police and the military as an essential component of our democracy. The deployment of the military against civilians should only be used in the most extreme cases as a last resort. Otherwise, as Elizabeth Goitein notes, “an army turned inward can quickly become an instrument of tyranny.”
Experts have already identified worst-case scenarios. George W. Bush administration official David Frum has sounded the alarm on the possibility of Trump using the military to influence the 2026 election.
If you want to learn more about all of this, here are reports we’ve published in the last few years on emergency powers, the Insurrection Act, the Posse Comitatus Act, the Alien Enemies Act, and martial law.
Once again, in the face of a lawless executive, the courts must now step up. The Supreme Court may want to avoid a conflict, but here, it may have no choice. It is imperative that it uphold checks against the use of military force against civilians.
And now that we know that the existing laws can be used, however tendentiously, to justify provocative military action, we must fix those laws so they cannot be abused again.
The Brennan Center has proposed reforms to the Insurrection Act, including defining the law’s critical terms and enforcing more checks on its use. We have also proposed reforms to strengthen the Posse Comitatus Act. Americans must be adamant, too, that even under existing statutes, presidents lack the power to declare martial law.
This is a critical moment in U.S. history, and it demands that we stand strong in our opposition to the administration’s reckless and unlawful use of military force, in Los Angeles and across the country.
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'A Grave Escalation': Leaked Letter Shows Noem Requested Military Arrests at LA Protests
"This isn't what happens in a democracy, this is what happens in a dictatorship," said one California lawmaker.
Jun 10, 2025
U.S. Homeland Security Secretary Kristi Noem appeared to take a step toward circumventing federal laws that bar the military from taking part in domestic law enforcement in a letter she sent to the Department of Defense Sunday as the National Guard was deployed to Los Angeles amid mass protests over immigration raids.
In a letter obtained by The San Francisco Chronicle, Noem wrote to Defense Secretary Pete Hegseth that the Pentagon should direct military forces "to either detain, just as they would at any federal facility guarded by military, lawbreakers under Title 18 until they can be arrested and processed by federal law enforcement, or arrest them."
The Posse Comitatus Act prohibits the military from taking part in domestic law enforcement without the authorization of Congress.
Noem called on the DOD to "support to our law enforcement officers and agents across Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and Federal Protective Services (FPS), as they defend against invasive, violent, insurrectionist mobs that seek to protect invaders and military aged males belonging to identified foreign terrorist organizations, and who seek to prevent the deportation of criminal aliens."
Noem did not specify the so-called "identified foreign terrorist organizations" that she claimed are involved in the protests that have erupted in Los Angeles in recent days in response to raids by Immigration and Customs Enforcement (ICE), in which 118 immigrants were arrested last week.
President Donald Trump has referred to the protests against his mass deportation operation as "riots," and has claimed those attending the demonstrations are "insurrectionists," but the protests were reported to be "largely peaceful" before Trump ordered more than 2,000 members of the California National Guard to Los Angeles on Saturday.
On Monday, 700 Marines were also deployed.
Syracuse University law professor William Banks told the Chronicle that Noem's request for members of the military to arrest protesters whom she labeled "lawbreakers" could be a step toward "the invocation of the Insurrection Act."
The Insurrection Act was last invoked in 1992 when Los Angeles residents erupted in fury over the acquittal of four Los Angeles Police Department officers who had been filmed savagely beating Rodney King, a black man who they had pulled over after a high-speed chase.
The 1792 law authorizes the president to deploy military forces domestically to suppress rebellions or unrest, when local or state law enforcement is unable to control the situation.
But Stephen Dycus, a professor emeritus at Vermont Law and Graduate School and an expert in national security law, emphasized that local authorities did not appear to lose control of the protests over the weekend.
Noem's requests for military arrests, along with Trump's federalization of the National Guard and deployment of the Marines, "can be seen as using the military, or at a minimum using that threat, to instill fear in the American people and discourage the kinds of protests that are going on in Los Angeles," Dycus told the Chronicle. "So this could be viewed as a preparation for invoking the Insurrection Act, or it could be viewed as part of a larger effort to frighten people who otherwise would exercise their First Amendment guarantee of free speech and protest."
Banks called Noem's push for military detentions of Los Angeles residents "a grave escalation."
The secretary indicated in her letter to Hegseth that she would send a formal request in the coming days. She also called for "the transportation of munitions" from Fort Benning and Wyoming, but did not say what the weapons would be used for.
California state Sen. Scott Wiener (D-11) said Trump's use of the military to suppress protests—which began when ICE agents searched the garment district of Los Angeles for undocumented workers—proves his mass deportation campaign "has nothing to do with deporting criminals and everything to do with creating a militarized terror police state."
"This isn't what happens in a democracy," Wiener told the Chronicle, "this is what happens in a dictatorship."
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'Democratic Freedoms' Under Threat as Migrants Charged for Entering Trump Militarized Border Zone
"As presidential overreaches pile up, they underscore the urgent need for Congress and the courts to reassert their roles as checks on executive authority," said two experts at the Brennan Center for Justice.
Apr 30, 2025
At least 28 migrants who crossed into the U.S. over the southern border could face up to a year in detention and $100,000 in fines after being charged Monday not only with "illegal entry" but also with violating "security regulations"—the result of U.S. President Donald Trump's transformation of the border into a 170-mile-long "National Defense Area."
As Common Dreamsreported last month, the White House has pushed to create a "buffer zone" patrolled by U.S. troops along a stretch of the southern border in New Mexico, with soldiers empowered to immediately detain anyone who "trespasses" in the 60-foot-wide area before handing them over to Customs and Border Protection (CBP).
The Washington Postreported that the migrants were apprehended on a route that has been used for years by people entering the U.S., and were accused in court filings of violating "the order issued on April 18, 2025, by the U.S. Army Garrison Fort Huachuca military commander designating the New Mexico National Defense Areas, also known as the Roosevelt Reservation, as both a restricted area and a controlled area under Army Regulation 190-13."
Carlos Ibarra, a court-appointed attorney for the migrants facing charges, told the Post that the government was "piling on" by adding the security violation charge, and said that "if these folks had $100,000, they wouldn't be coming over here."
The arrests came after Defense Secretary Pete Hegseth made an appearance at the border last week, saying in a video posted on the Pentagon's social media accounts, "This may as well be a military base."
"Any illegal attempting to enter that zone is entering a military base," he said. "You add up the charges of what you can be charged with, misdemeanors and felonies, you could be looking up to 10 years in prison when prosecuted."
Ordinarily people who are charged for crossing the border without authorization have faced a potential six-month jail term and up to $5,000 in fines.
The area was turned into a de facto military base when Trump signed an executive order earlier this month giving the Pentagon jurisdiction over the Roosevelt Reservation, saying in a memo that the southern border "is under attack from a variety of threats" and requires a more direct security role for the U.S. military.
According to the Migration Policy Institute, apprehensions of migrants by U.S. Border Patrol sank to just 7,000 in March, the fewest in at least 25 years.
The memo creating a military installation at the border was designed to give federal troops a "legitimate military reason" to apprehend, search, and detain troops without violating the Posse Comitatus Act and without Trump having to invoke the Insurrection Act of 1807, the Brennan Center for Justice explained in a blog post on Monday.
The Posse Comitatus Act prohibits federal armed forces from engaging in civilian law enforcement without the approval of Congress. The Insurrection Act provides an exception to that law, as does a loophole in the Posse Comitatus Act called the "military purpose doctrine." Trump's advisers have so far recommended against invoking the Insurrection Act, which authorizes the president to deploy military forces inside the United States to enforce the law in certain situations.
Trump's memo allowing the military to "act as a de facto border police force," wrote Elizabeth Goitein and Joseph Nunn at the Brennan Center, "could have alarming implications for democratic freedoms."
"It continues a pattern of the president stretching his emergency powers past their limits to usurp the role of Congress and bypass legal rights," they wrote. "He has misused a law meant to address economic emergencies to set tariffs on every country in the world. He declared a fake 'energy emergency' to promote fossil fuel production. And he dusted off a centuries-old wartime authority to deport Venezuelan immigrants, without due process, to a Salvadoran prison notorious for human rights violations."
"As presidential overreaches pile up, they underscore the urgent need for Congress and the courts to reassert their roles as checks on executive authority," wrote Goitein and Nunn.
Along with concerns about the legality of Trump's move, Goitein and Nunn noted that troops "are trained to fight and destroy an enemy; they're generally not trained for domestic law enforcement." Empowering them to engage with civilians now could make it easier for the administration to "justify uses of the military in the U.S. interior in the future."
"Asking them to do law enforcement's job creates risks to migrants, U.S. citizens who may inadvertently trespass on federal lands at the border, and the soldiers themselves," they wrote.
Rebecca Sheff, senior staff attorney at the ACLU of New Mexico, wrote last week that Trump's creation of a military installation on public border land "represents a dangerous erosion of the constitutional principle that the military should not be policing civilians."
"By authorizing service members to detain, search, and conduct 'crowd control,' these new authorities undermine our state's values of dignity, respect, and community," said Sheff. "We don't want militarized zones where border residents—including U.S. citizens—face potential prosecution simply for being in the wrong place. This isn't how we want to be in relation with our neighbors. This dangerous expansion of military authorities threatens both our civil liberties and the cultural fabric that makes our borderlands unique."
Hina Shamsi, director of the ACLU National Security Project, also described potential impacts on U.S. citizens who live in border areas.
In addition to endangering migrants who cross the border, Shamsi wrote, Trump's actions "are worsening the conditions under which civilian border communities live."
"Our southern border is home to approximately 19 million people, in addition to the regular business and trade commuters who come across the border every day," wrote Shamsi. "The new policy has serious implications for border residents living under this expanded militarized zone, which includes cities like San Diego, California; Nogales, Arizona; El Paso, Texas and other heavily populated, thriving communities. People in these areas could now face federal prosecution for trespassing if they unintentionally walk or drive onto a designated 'national defense area.'"
Shamsi warned that while Trump has not yet invoked the Insurrection Act, "his administration continues to invest in the theater of war," and called on Congress "to insist on oversight for these expanded actions... and to call for safeguards and transparency to protect border residents from escalating military control over their daily lives."
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