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President Donald Trump’s controversial deployment of the National Guard to Los Angeles and possibly other cities may survive judicial scrutiny, legal experts say, despite a federal judge ruling that it violated the Posse Comitatus Act.
Experts say presidents are afforded near-total deference by the courts when it comes to military use, even under the Posse Comitatus Act. The 150-year-old law says the military cannot typically engage in standard police work.
Attorney Andrew Stoltman, an adjunct law professor at Northwestern University, told Fox News Digital he thinks the Supreme Court will eventually sanction the president’s unconventional use of the National Guard. The court has routinely sided with Trump in temporary rulings this year.
“I think ultimately he will be given the legal green light to do so. But he is doing this obviously in heavy blue states, so he’s going to have to take this eventually to the Supreme Court,” Stoltman said, adding, “But I think with the expansion of the president’s powers, it’s going to be eventually stamped in terms of a legal seal of approval.”
FEDERAL JUDGE RULES TRUMP VIOLATED MILITARY LAW BY ACTIVATING NATIONAL GUARD IN CALIFORNIA
In California, Judge Charles Breyer found in a lawsuit brought by Democratic Gov. Gavin Newsom that Trump improperly federalized the National Guard in response to anti-Immigration and Customs Enforcement protests and riots.
Posse Comitatus Act violation
Breyer, a Clinton appointee and brother of retired liberal Justice Stephen Breyer, later also found that Trump and Secretary of Defense Pete Hegseth violated the Posse Comitatus Act by directing troops, including thousands of National Guard soldiers and hundreds of Marines, to perform basic law enforcement tasks, such as making traffic stops and conducting riot control.
Breyer said the Trump administration’s explanation that the military forces were protecting federal personnel and buildings was an insufficient explanation for the National Guard’s activities, which included accompanying ICE and the Drug Enforcement Administration on immigration raids at three marijuana farms outside Los Angeles and participating in “Operation Excalibur,” a Homeland Security mission in MacArthur Park.
The U.S. Court of Appeals for the Ninth Circuit temporarily paused both of Breyer’s orders, but the lawsuit is still proceeding through the courts, and may soon not be the only litigation on the matter.
Gerard Filitti, an attorney at the Lawfare Project, identified perceived pitfalls in Breyer’s order.
The judge “treated ordinary crowd control as if it were unlawful ‘law enforcement,'” Filitti said in a statement to Fox News Digital. “That’s simply not the law. The Guard wasn’t arresting people or running police investigations — they were stabilizing the situation so ICE could do its job.”
TRUMP SAYS HE COULD SEND THE NATIONAL GUARD TO MARYLAND TO ADDRESS CRIME
“That distinction matters, and the judge ignored it,” Filitti added.
At issue in the California lawsuit are two laws under which presidents are permitted to federalize the National Guard, a hybrid military force that otherwise falls under the purview of governors. Trump cited a rebellion statute, but he could have used another law, known as the Insurrection Act, to deploy the troops. This was a key consideration for Breyer.
“If the President wants to avoid the [Posse Comitatus Act’s] restrictions, he must invoke a valid exception — like the Insurrection Act, along with its requisite showing that state and local law enforcement are unable or unwilling to act,” Breyer wrote in an order last week.
‘Dangerous precedent’
The president over the past week has threatened to send troops to Chicago, as well as New York City, Baltimore and other cities, where he says violent crime is rampant and presents an emergency that requires a military response.
Filitti said Breyer’s decision would “set a dangerous precedent” if it were upheld in higher courts.
“If left standing, it means any state can block federal law enforcement simply by refusing help and daring the courts to tie the President’s hands,” Filitti said. “That’s not how the Constitution works, and it’s not how you keep Americans safe. The decision should, and will, be overturned — and quickly.”
Trump’s use of the National Guard in California came as part of an effort to crackdown on immigration in a major border state, but the president has also signaled over the past week that he wants to use it to address street crime, as he has in Washington, D.C.
CHICAGO MAYOR CALLS TRUMP’S NATIONAL GUARD DEPLOYMENT PLAN ‘UNCOORDINATED, UNCALLED-FOR AND UNSOUND’
D.C. deployment
Trump deployed the National Guard and sent other federal authorities into Washington, D.C., to address crime there, with a focus on immigration enforcement and homelessness.
The nation’s capital has since seen a significant reduction in crime, including in carjackings, which are down more than 40% compared to this time last year, and in violent crime, which is down 27% from last year. Mayor Muriel Bowser, a Democrat, credited the Trump administration with helping to reduce crime and signed an order last week formalizing local law enforcement’s cooperation with certain federal agencies.
But Bowser’s attorney general was less receptive and sued, saying the National Guard response, including out-of-state National Guard members, was unwarranted.
D.C. is unique in that the president can use the D.C. National Guard to take over law enforcement operations there for 30 days as part of the Home Rule Act, meaning the D.C. attorney general’s lawsuit differs from lawsuits or potential lawsuits brought in other jurisdictions. The 30-day expiration is Wednesday.
‘Structural problems’ causing crime
Stoltman, who is based in Chicago, said leaders in Democratic states and cities, such as outspoken Gov. JB Pritzker of Illinois, would be wise to follow Bowser’s lead rather than resist federal assistance.
“Our governor and our mayor are diametrically opposed to Trump sending in the troops, and I think politically, they’re making a big mistake,” Stoltman said, noting that despite a small decline in crime over the last several years, Chicago has a high murder rate.
The president has only targeted blue states at this stage, despite some of the highest crime rates occurring in red states’ cities. Critics have pointed to this, as well as said Trump is avoiding addressing underlying factors driving crime, such as understaffing and local prosecutorial policies, such as cashless bail.
Zack Smith, a senior legal fellow at the conservative Heritage Foundation, told Fox News Digital he viewed the National Guard as an immediate response that would not necessarily address root causes of crime.
“What we’re talking about in many of these cities are structural problems. We’re talking about decades in some instances of neglect and decay to get to this point, so all of this won’t be fixed overnight,” Smith said.
He said he felt that in D.C., the strategy has been successful in terms of sheer numbers, “because we know one of the most effective ways to combat violent crime is to have police officers on the street who are empowered to appropriately do their jobs, and they have prosecutors who are willing to prosecute people when they break the law,” Smith said.
But there “will absolutely need to be a larger conversation about the cities’ will to make adjustments in the long term,” Smith added.
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