Last week, federalized National Guard forces who were sent to Los Angeles in response to protests against Immigration and Customs Enforcement (ICE) raids assisted the Drug Enforcement Administration (DEA) in conducting a routine counter-drug operation 130 miles east of the city. This development represents an alarming escalation of President Donald Trump’s efforts to use the military as a domestic police force. Based on currently available information, it appears to be illegal, as well.
What do we know about the operation and the National Guard’s role?
Around 315 Guard personnel were deployed to assist DEA in executing a federal search warrant as part of an investigation into three large marijuana growth operations in the eastern Coachella Valley region. A DEA spokesperson said that the agency requested support due to the “magnitude and topography” of the operation, which spanned 787 acres and took place in temperatures up to 112 degrees. The operation also involved the Federal Bureau of Investigation; Customs and Border Protection; ICE; the Bureau of Alcohol, Tobacco, Firearms and Explosions; the U.S. Marshals Service; and the Internal Revenue Service. During the raid, ICE agents arrested between 70 and 75 workers believed to lack documentation, and one U.S. citizen was arrested for impeding law enforcement.
In response to a reporter’s inquiry, NORTHCOM stated that National Guard forces had “supported a Drug Enforcement Agency operation a few hours outside of Los Angeles” and that their role in the operation was to “protect federal personnel who are performing federal law enforcement functions.” The DEA spokesperson defined the Guard’s role more broadly: “Due to the vast magnitude of the operation, we needed partners to safeguard not just our personnel, but also the individuals either working or living in the premises.” The administration has not publicly disclosed what specific activities Guard personnel were authorized to perform. Images posted by the U.S. military to the Defense Visual Information Distribution Service show soldiers carrying riot shields and creating security perimeters next to their Humvees in various locations.
Is there legal authority for this use of the National Guard?
NORTHCOM has framed this use of the Guard as a continuation of the activities authorized by the president’s June 7 memorandum. As NORTHCOM stated, “[T]he president’s [June 7] order and NORTHCOM’s mission is not constrained by the geography of Southern California.” While it is true that the deployment authorization in the memorandum is not limited to Los Angeles, it is limited to “locations where protests against [federal] functions are occurring or are likely to occur based on current threat assessments and planned operations.” NORTHCOM made no effort to suggest—and it is frankly implausible—that protests were planned against the drug raid in Coachella Valley. The DEA’s statement similarly made no mention of protest activity. The deployment thus appears to be unauthorized even under the presidential memorandum.
There is also no applicable statutory authority to federalize National Guard forces for this purpose. Several thousand members of the California National Guard are currently federalized under 10 U.S.C. § 12406, which permits federalization in three circumstances: where there is an invasion or threat of an invasion; where there is a rebellion against the authority of the U.S. government or threat of such a rebellion; or where the president “is unable with the regular forces to execute the laws of the United States.” Applying a highly deferential standard, the Ninth Circuit recently held that the third prong had likely been met, relying on government declarations detailing multiple acts of violence by people protesting ICE raids in Los Angeles. Needless to say, however, Guard forces federalized under this rationale cannot then be deployed for different circumstances that do not fall within the statute. There is no allegation of protest activity—let alone violent protests—in the region where the drug raid took place. The fact that the marijuana growing operations spanned many acres and the day was hot cannot seriously be posited as a reason why the president could not execute the law without the help of the military.
Nor can the administration rely on a claim of inherent constitutional authority to protect federal property and functions. This claimed authority has been used throughout U.S. history to justify certain uses of federal forces, but it is not an independent basis for federalizing the National Guard. Statutory authority is required for federalization. Moreover, as Ryan Goodman has pointed out, the Department of Justice has opined that this authority is triggered only in cases where civilian authorities are unwilling or unable to provide the necessary protection. There is no reason to think that is the case here. Finally, it appears that National Guard forces were not only protecting federal personnel and functions; as noted above, a DEA spokesperson suggested that they were also protecting “the individuals either working or living in the premises.”
Finally, the administration might point to 10 U.S.C. Chapter 15, which authorizes the use of federal armed forces to provide a range of logistical support to civilian law enforcement agencies. The chapter does not authorize federalization of the National Guard, however. Moreover, even under the provision specifically authorizing assistance for counter-drug operations, federal forces are limited to activities such as maintaining and repairing equipment, transporting personnel, constructing roads and fences, and conducting aerial and ground reconnaissance. There is no authority in Chapter 15 for federal forces to perform security functions such as those the National Guard appeared to be performing during the drug raid.
Does this use of the National Guard violate the Posse Comitatus Act?
The Posse Comitatus Act prohibits federal forces, including federalized National Guard forces, from participating in civilian law enforcement activities unless “expressly authorized” by an act of Congress or by the Constitution. Courts have construed the law to apply when troops engage directly in law enforcement activities, but not when they merely provide indirect logistical support for law enforcement operations.
There is very little public information available about what activities the National Guard conducted or was authorized to conduct. So far, we know only that Guard forces created a security perimeter around operations. Under Department of Defense guidelines, such “security functions” are treated as direct law enforcement assistance and are normally impermissible—likely because they invite the kind of face-to-face interaction with civilians that the Posse Comitatus Act is designed to prevent. Under the case law, however, it is not clear whether courts would find this activity to run afoul of the Posse Comitatus Act. If it emerges that Guard forces engaged in temporary detentions, cursory searches, or seizures, the Posse Comitatus Act will be squarely implicated. And there is an argument that involving 315 National Guard soldiers in a law enforcement operation—more soldiers than civilian agents—itself crosses the legal line, as courts have held that the Posse Comitatus Act prohibits using the military in a way that “pervade[s] the activities of civilian authorities.”
The administration would likely argue, as it has in litigation challenging the Los Angeles deployment, that the Posse Comitatus Act is simply inapplicable when federal forces are deployed to protect federal property and functions. Although this is a longstanding executive branch theory, there is no colorable basis for it. Courts have held that the Posse Comitatus Act is triggered when civilians are subjected to military power that is “regulatory, prescriptive, or compulsory in nature.” This test does not rely on the purpose of the deployment. And even if the purpose were dispositive, it would be legal sophistry to assert that protecting the “federal function” of conducting drug raids—in other words, protecting law enforcement activities—is not a law enforcement purpose.
What are the broader concerns?
The lack of any legal authorization for this use of federalized National Guard forces is, of course, highly concerning in its own right. But the use of federal forces to assist with drug raids also represents a massive shift in, and an expansion of, Trump’s domestic use of the military.
The deployment of federal troops to Los Angeles was based on a claim that there was an urgent crisis in the city caused by mass civilian unrest. According to fact checkers and on-the-ground accounts, the claim did not match up with the reality; the violence that occurred fell far short of the levels that prompted deployment in previous cases of civil unrest, such as the riots that took place in Detroit in 1967 or in Los Angeles in 1992. But at least there was a claim of extraordinary exigency. Here, no reason has been offered that could possibly justify the use of the military, even on its face. This is nothing short of using the military for routine law enforcement purposes.
Regardless of whether the Guard’s actions technically implicate the Posse Comitatus Act, the Department of Justice has observed that
the [Posse Comitatus] Act was intended to prohibit the employment of persons subject to military discipline to coerce or threaten to coerce civilians in the ordinary course of criminal or civil proceedings …. Congress intended to remove the threat of actual or potential military force from the ordinary occasions of compulsion by the civil authorities.
Military participation in routine criminal law enforcement functions like drug raids is precisely the type of activity the Posse Comitatus Act was intended to prevent. Indeed, if this use of the military were to be upheld by the courts, it is not obvious what would stop Trump from deploying federal forces to accompany almost any federal law enforcement operation—civil or criminal—anywhere in the nation, based on justifications as mundane as temperature or topography.
In short, this development must not be viewed as simply another chapter in the Los Angeles deployment story. This use of federal forces is different in kind from deploying troops to protect ICE raids in response to some violent actions during protests. Both are equally alarming. But while using the military to police protests threatens to undermine core First Amendment freedoms, using the military to conduct routine law enforcement activity threatens to turn the country into a police state.
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