Is It Legal for Trump to Send Troops Into U.S. Cities?

PROVIDENCE, R.I. – President Trump recently proposed using American cities as “training grounds” for the military. He has already sent the National Guard troops to Los Angeles, and he’s trying to do the same in other Democratic-led cities, including Chicago and Portland, Ore.

So is that legal? On the Rhode Island Report podcast, Roger Williams University School of Law Professors Peter Margulies and Jared Goldstein discuss – and debate – the legal matters involved.

In September, a federal judge ruled that the Trump administration broke federal law by sending National Guard troops to Los Angeles in June after days of protests over immigration raids. Judge Charles Breyer found the federal government violated the Posse Comitatus Act of 1878, which generally prohibits the use of the US military for domestic civilian law enforcement. But the judge’s order was placed on hold pending an appeal.

Margulies argued that the federal government is right in that case. He said the norm has been that the Department of Defense (now Department of War) “historically has been very wary of having its personnel get involved in domestic law enforcement.” 

But the way the law is written is a different matter, and cases going back to the 1800s give the president broad authority to call out the militia, Margulies said. He said the law gives the president the authority to call in the National Guard to ensure the execution of federal law, and there were attempts to interfere with Immigration and Customs Enforcement actions in Los Angeles.

“Their sole purpose was to make sure that ICE got to do its business without undue harassment from folks who wanted to disrupt ICE activities, and I think the courts have said that that’s the president’s call,” Margulies said. “These are very wide authorities.”

Goldstein agreed that norms have long disfavored using the military for law enforcement, but he disagreed about the law’s “bottom line.”

The law contains “some loose language” that could be read to justify Trump’s actions, Goldstein said. “But it doesn’t have to be read that way,” he said. “And if you read the statute against these longstanding norms, then you should rule, as Judge Breyer did, that the president isn’t allowed to do this.”

Goldstein said the “clear purpose” of the law is to prevent the National Guard from being used for law enforcement duties “and to act as the agent of the president in his political ambitions – score political points.”

While Trump says he is sending the National Guard into cities to fight crime, his lawyers tell judges the troops are actually there to protect federal property or respond to protests, Goldstein said. So, for example, if someone spray paints “Down with Trump” on a federal building, that can be used as a “fig leaf to assert federal power and to score some political points that the president is trying to achieve,” he said.

Breaking these norms “exposes that our legal system – which you think has some bedrock principles like the military isn’t for law enforcement, we don’t have a national police force – turns out to be built on sand," Goldstein said.

Margulies said voters provide the “final bulwark” in such situations.

“People have to realize that government needs to be accountable,” he said. “Government needs to be carefully tailored to the problem at hand. That’s what the rule of law, that’s what constitutionalism, is all about. And so people also have to go out and vote.”

The New York Times recently quoted former generals concerned about changing the role of a National Guard long seen as “the good guys” who help in a crisis.

Margulies said, “It’s not what they’re used to doing. They don’t train for it. I think that’s one reason they’re doing these kind of peripheral mundane activities like landscaping. No person in the US military wants to have some track record of shooting an innocent person in a US city.”

Goldstein said, “The downside is both that they lack any training in doing law enforcement, and it takes away from their ability to be doing maybe more important functions in the state, like fighting wildfires or dealing with other natural disasters.”

On the podcast, Margulies and Goldstein also discussed whether California will be able to enforce a new law banning most law enforcement officers, including ICE agents, from wearing masks while conducting official business.

The Rhode Island Report podcast is produced by The Boston Globe Rhode Island in collaboration with Roger Williams University. To get the latest episode each week, follow the Rhode Island Report podcast on Apple Podcasts, Spotify, and other podcasting platforms, or listen in the player above. You can sign up for 30 days of free unlimited access to Globe.com here.