Coffee Break: Posse Comitatus and Trump’s Post-Constitutional Order

The Posse Comitatus Act looms over President Trump’s decision to take over the Washington, D.C. police, his previous decision to assume control of the California National Guard, and the redistricting battle in Texas.

On August 11, The White House issued a presidential memoranda titled “Restoring Law and Order in the District of Columbia” which included these key passages:

The local government of the District of Columbia has lost control of public order and safety in the city, as evidenced by the two embassy staffers who were murdered in May, the Congressional intern who was fatally shot a short distance from the White House in June, and the Administration staffer who was mercilessly beaten by a violent mob days ago. Citizens, tourists, and staff alike are unable to live peacefully in the Nation’s capital, which is under siege from violent crime. It is a point of national disgrace that Washington, D.C., has a violent crime rate that is higher than some of the most dangerous places in the world. It is my duty to our citizens and Federal workers to secure the safety and the peaceful functioning of our Nation, the Federal Government, and our city.

Mobilizing the District of Columbia National Guard. Pursuant to my authority under the Constitution and laws of the United States and the District of Columbia, I direct the Secretary of Defense to mobilize the District of Columbia National Guard and order members to active service, in such numbers as he deems necessary, to address the epidemic of crime in our Nation’s capital. The mobilization and duration of duty shall remain in effect until I determine that conditions of law and order have been restored in the District of Columbia. Further, I direct the Secretary of Defense to coordinate with State Governors and authorize the orders of any additional members of the National Guard to active service, as he deems necessary and appropriate, to augment this mission.

Aficionados of incipient fascism might be a bit disappointed in the rhetoric compared to this banger from April:

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— Nat Wilson Turner (@natwilsonturner) August 13, 2025

Maybe the more restrained tone is a function of lessons learned in the California deployment which is now the subject of litigation based on the Reconstruction Era Posse Comatitus Act.

Or maybe it’s boiler plate based on Trump’s stated plans to use the National Guard to “take back” other cities such as Chicago, Los Angeles, New York, Baltimore and Oakland.

Critics were quick to notice that each city named Trump has a Black mayor.

Trump has also tasked the Pentagon with creating a “military ‘reaction force’ for civil unrest.” The Washington Post has details:

The Trump administration is evaluating plans that would establish a “Domestic Civil Disturbance Quick Reaction Force” composed of hundreds of National Guard troops tasked with rapidly deploying into American cities facing protests or other unrest, according to internal Pentagon documents reviewed by The Washington Post.

The plan calls for 600 troops to be on standby at all times so they can deploy in as little as one hour, the documents say. They would be split into two groups of 300 and stationed at military bases in Alabama and Arizona, with purview of regions east and west of the Mississippi River, respectively.

Cost projections outlined in the documents indicate that such a mission, if the proposal is adopted, could stretch into the hundreds of millions of dollars should military aircraft and aircrews also be required to be ready around-the-clock.

Meanwhile in Texas, Trump’s acolytes are attempting to criminalize Democratic opposition to the unprecedented mid-decade redistricting plan.

Steven D. Schwinn of the John Marshall Law School lays out the constitutional implications of Trump’s words and actions:

These attacks follow a common course of action. First, President Trump lodges an aggressive or even outlandish constitutional claim in support of a new controversial policy. Often, his claim, if ultimately accepted, would dangerously aggrandize the power of the presidency at the expense of the coordinate branches and the states in violation of the separation of powers and federalism. Next, he adjusts his claim, and his policy, in reaction to push-back from Congress, the courts, or the states. But he does so only begrudgingly, often leaving a trail of damage to our structural Constitution in his wake. Finally, he nevertheless achieves his original policy goal, or much of it, by further abusing the coordinate branches and the states.

In addition to following a common course of action, President Trump’s attacks also have a common feature: They exploit the comparative institutional strengths of the presidency and the comparative institutional weaknesses of the coordinate branches and the states. President Trump is all too aware that the modern president wields enormous power. At the same time, he realizes that Congress, the courts, and the states often lack effective institutional powers or cooperative ability to rein him in. (And even when effective institutional powers may exist, they can be frustrated or undermined when the coordinate branches or the states share President Trump’s political objectives.) By exploiting the institutional strengths of the presidency and the institutional weaknesses of the coordinate branches and the states, President Trump can yet further aggrandize his own power at the expense of Congress, the courts, and the states.

I’ll have more on that further down, but let’s look at what Trump is up to in D.C. first.

His rhetoric at his news conference was racially charged and alarming:

“It’s becoming a situation of complete and total lawlessness. We’ll get rid of the slums, too. We have slums here. We’ll get rid of them. I know it’s not politically correct. You’ll say, ‘Oh, so terrible.’ No, we’re getting rid of the slums where they live.”

Whatever is driving Trump’s actions, it’s not crime data.

pic.twitter.com/6DTQrhmRnF

— Nat Wilson Turner (@natwilsonturner) August 13, 2025

It should also be noted that Joe Biden campaigned on a promise to grant D.C. statehood or at least expanded home rule but did the opposite in office.

Trump supporters like podcaster Benny Johnson amplified and expanded on Trump’s rhetoric, telling his 5.5 miillion YouTube subscribers it’s time for ethnic cleansing in the nation’s capitol:

I believe entire neighborhoods, probably, need to be emptied, need to be bulldozed. I believe that there are places that are so crime-ridden and so infested that you just need to — like you’re just gonna have to crack down. You’re going to have to do the job, and you’re going to have to get the crime out of Washington. That’s my personal experience.

So far, the reality isn’t quite that dramatic. From The New York Times:

About a dozen members of the National Guard appeared in five military vehicles near the Washington Monument as the sun set, a stark juxtaposition to a peaceful evening scene of people jogging by with headphones and walking their dogs. An Army official said troops were continuing to gather at the D.C. Armory and were expected to deploy around national monuments, and near a U.S. Park Police facility in the Anacostia neighborhood of southeast Washington.

Mr. Trump on Monday described the nation’s capital in apocalyptic terms as a crime-infested wasteland — a description that ignores the extent to which crime has been falling in the city over the last two years. But it remains unclear whether the eventual show of force will match the president’s rhetoric.

The initial deployment near the Washington Monument, at least, often resembled something less fearsome, with troops snapping photos of themselves with visitors. They left roughly two hours after they arrived.

“We just did a presence patrol to be amongst the people, to be seen,” Master Sgt. Cory Boroff said as he stood near a Humvee. “Of the people, for the people in D.C.,” he added. He said he did not know where they would be headed next.
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Ms. Leavitt boasted that a federal task force, which includes some local officers, made 23 arrests on Monday evening in connection with a range of crimes. In Washington, a city of roughly 700,000 people, the Metropolitan Police Department makes an average of 68 arrests a day, officials said. City officials said the National Guard troops would not have the authority to make arrests.

Meanwhile the consequences of Trump’s April California caper continue to mount.

Starting with the California law suit:

California Attorney General Rob Bonta today issued a statement ahead of trial beginning tomorrow at 10:00 AM PT in the U.S. District Court for the Northern District of California in California’s lawsuit challenging the unlawful use of federalized California National Guard troops for civilian law enforcement in Los Angeles in violation of the Posse Comitatus Act. Attorney General Bonta and California Governor Gavin Newsom sued the Trump Administration in June after President Trump sent federalized California National Guard members and Marines into Los Angeles communities to patrol and engage in other law enforcement activity prohibited by the Posse Comitatus Act. He did so over the objections of the Governor, against the wishes of local law enforcement, and for reasons unsupported by conditions on the ground.

“Two months ago, the federal government deployed military troops to the streets of Los Angeles for the purposes of political theater and public intimidation. This dangerous move has no precedent in American history, erodes trust between the American military and the public, and pulls our servicemembers away from their vital role in fighting wildfires and tackling the fentanyl epidemic,” said Attorney General Bonta. “Today, 300 federalized California National Guard members remain tools in the President’s game, and the Trump Administration seeks to advance the argument that there should be no limits on what federal troops can do. But that is not what our law allows. We begin trial with the facts and the law on our side – and we look forward to making our case in court.”

At trial, California will argue that the Trump Administration’s decision to embed federalized California National Guard members and Marines within a domestic law-enforcement agency — the federal Department of Homeland Security (DHS) and its Immigration and Customs Enforcement (ICE) agency— and to deploy them widely throughout the state, all while asserting there are no limits on what those federal troops can do, is unprecedented and illegal. In attempting to justify the unjustifiable, the Trump Administration ignores both the clear tests that courts have established over decades for interpreting the Posse Comitatus Act and determining what conduct violates the Act, as well as career military officers’ understanding of that Act.

There are also allegations that Trump’s actions in California had a negative impact on morale:

Three different advocacy organisations representing military families said they had heard from dozens of affected service members who expressed discomfort about being drawn into a domestic policing operation outside their normal field of operations. The groups said they have heard no countervailing opinions.

“The sentiment across the board right now is that deploying military force against our own communities isn’t the kind of national security we signed up for,” said Sarah Streyder of the Secure Families Initiative, which represents the interests of military spouses, children and veterans.

“Families are scared not just for their loved ones’ safety, although that’s a big concern, but also for what their service is being used to justify.”

Chris Purdy of the Chamberlain Network, whose stated mission is to “mobilize and empower veterans to protect democracy”, said he had heard similar things from half a dozen national guard members. “Morale is not great, is the quote I keep hearing,” he said.

It’s deeply ironic that California is basing its case on the Posse Comatitus Act, an artifact of the end of Reconstruction:

To ensure that racist groups such as the Ku Klux Klan would not intimidate Republican voters, Federal troops were stationed throughout polling places in the South. In the closest election in history, the Southern-favoured Democrat Samuel Tilden lost to Republican candidate Rutherford Hayes by a single electoral college vote. The presence of federal troops during the election made many Southerners see the military supervision as a tyrannical use of force by Republicans to remain in power. The continual escalation of tensions between the soldiers and Southerners led to the Compromise of 1877, wherein the newly-elected Hayes was forced to withdraw the army from the South. Not satisfied with this withdrawal, in 1878 the Democrats introduced the Posse Comitatus Act.

While the Democrats controlled the House following the 1874 midterm election, the Republicans still held a majority within the Senate. Surprisingly, many Republicans were sympathetic to the Act. When introducing the bill, Representative William Kimmel of Maryland skilfully depicted it as another example of Americans rejecting the influences of totalitarianism. He aligned his position with the Founding Fathers’ fears of a standing army and its ability to enforce martial law by drawing reference to Washington’s use of a civilian militia instead of the Army to quell the 1794 Whisky Rebellion, which was applauded by the Congress. Kimmel convinced many Republicans that this evidenced a history of the federal government disapproving the use of the military for civilian law enforcement. The Act stipulated that the use of the military as a posse comitatus was criminalised unless expressly authorised by an Act of Congress or the Constitution. The use of the military to combat civil insurrection under the 1807 Insurrection Act was included as a statutory exception. President Hayes, convinced that the 13th, 14th and 15th Amendments would ensure black suffrage in the South, signed the Posse Comitatus Act into ratification in June 1878.

Not surprisingly, the Posse Comatitus Act has major loopholes and limitations:

One significant loophole is the District of Columbia National Guard. While all other National Guards are commanded by their state or territorial governors, the DC Guard falls under the president’s direct control at all times. Although it can act as a federal force, the Department of Justice has long claimed it can also operate as a non-federal “militia” that is not constrained by the Posse Comitatus Act. This means presidents can theoretically use the DC Guard for law enforcement whenever they choose.

Another loophole is Section 502(f) of Title 32 of the U.S. Code, which allows the National Guard to carry out federal missions at the request of the president or secretary of defense while remaining under state control, thus bypassing the Posse Comitatus Act. While the rest of Section 502 is principally used for training missions, there are no criteria limiting what kinds of missions Subsection f can be used for. The Trump administration exploited this license a few years ago when it invited National Guard troops from 11 states into DC to suppress protests following the murder of George Floyd. This unprecedented action was done without invoking the Insurrection Act, as the president could simply ask sympathetic state governors to give the orders on his behalf.

To make matters worse, the Posse Comitatus Act lacks an effective enforcement mechanism. The law is a criminal statute, yet there’s no real threat of prosecution for violating it in practice. No one has ever been convicted for violating the Posse Comitatus Act, and only two people have ever been prosecuted — both more than 140 years ago.

There has already been some interesting testimony in the trial, via Democracy Docket:

The second day of trial again saw testimony from Maj. Gen. Scott Sherman, the head of Task Force 51, which oversaw the National Guard troops and Marines involved in the military mission to Los Angeles.

Sherman said soldiers were given training materials on Posse Comitatus. These materials included a list of specific activities prohibited by the act: Security patrols, traffic control, crowd control and riot control.

Though the act prohibits members of the military from carrying out certain actions, Sherman said there was a “constitutional exception” that permitted such activities under certain circumstances.
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After stressing that he’s not a lawyer, Sherman said Department of Defense attorneys advised him that the military was allowed to carry out prohibited activities because such acts were “in line” with Trump’s order for troops to protect federal property and personnel.
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The advice Sherman said he received appears to derive from an expansive controversial theory of executive authority called the “protective power.” It asserts that presidents have inherent constitutional authority to use the military to protect federal property, personnel and functions and that such actions cannot violate Posse Comitatus.

The theory, which is not explicitly found in the Constitution but is instead a legal interpretation of the Take Care Clause, served as the basis of Trump’s deployment of National Guard troops and Marines to Los Angeles.

Politico had more on Sherman’s testimony:

The most revelatory testimony of the day came from Sherman, who initially commanded the Guard troops Trump deployed to Los Angeles. He recalled his opposition to a request by immigration authorities for military support during an operation slated for Father’s Day in the city’s MacArthur Park.

Intelligence, Sherman recalled, showed a minimal threat to federal immigration agents, and the proposed operation would have sent military vehicles through the center of the park. But when he expressed misgivings, Gregory Bovino, the chief patrol agent of the Customs and Border Patrol’s El Centro sector — who has taken on a leading role in the Los Angeles immigration crackdown — pushed back strongly, Sherman recalled.

Asked by a lawyer for California if Bovino questioned Sherman’s loyalty to the U.S. over the issue, Sherman answered simply “yes” and did not elaborate.

Meanwhile in Texas, Trump acolyte Attorney General (and U.S. Senate candidate) Ken Paxton is raising the stakes for Texas Democrats attempting to resist redistricting:

Texas Attorney General Ken Paxton on Tuesday asked a Tarrant County judge to jail former U.S. Rep. Beto O’Rourke, in another escalation in Republicans’ broader effort to put an end to Texas Democrats’ walkout over a new congressional map.

Paxton sued O’Rourke and his political group, Powered by People, last week, arguing that the group was deceptively fundraising for and illegally supporting Texas Democrats’ walkout. Tarrant County District Judge Megan Fahey quickly granted Paxton’s request to temporarily block O’Rourke and Powered by People from fundraising for Democrats or spending money to cover their expenses.

On Tuesday, Paxton claimed that O’Rourke had violated that temporary injunction at a Fort Worth rally Saturday, when he told the crowd, “There are no refs in this game, fuck the rules.”

According to a video of the event, O’Rourke appeared to say that phrase after urging the crowd to support retaliatory redistricting in other blue states — not in relation to the injunction.

Paxton and Presidential aspirant Governor Greg Abbott have previously sought to have quorum breaking Democrats thrown out of office.

The Ettingermentum newsletter explains some of the context of the unprecedented national redistricting battle and how Dems could strike back:

…nothing even remotely like what we’re seeing now has ever happened before. Historically speaking, mid-decade redistricting almost always only happens as a result of court orders. When it has occurred on a purely partisan basis, it has never been on a systemic, nationally-organized scale involving tit-for-tat promises of retaliation. Because of this, the mainstream media—always insufficient in its coverage of gerrymandering even in the best of times—has so far been incapable of covering these rapid developments in a coherent way.

How Democrats Could Strike Back:

• California: 5-9 seats, but only if voters approve of a constitutional referendum.
• New York: 3 seats or more, but not until 2028.
• Maryland: One seat, but potential legal challenges make a new map unlikely.
• New Jersey: 1-2 seats, but it may already be too late.
• Illinois: 1-3 seats, but one is the most realistic.
• Minimum immediately achievable gains before 2026: Six seats.
• Maximum possible gains before 2026: Fifteen seats.

He also notes that the Texas Democrats have already given up:

Democrats believe they’ve accomplished their mission by killing the first special session and by raising national awareness about the mid-decade redistricting effort.

It is unclear which day they will be in Austin at the Capitol, but they stress that they will push for Hill Country flooding relief to be the priority.

After our initial reporting online and on television, a spokesperson for the Texas Democratic Caucus sent the following statement to ABC News:

“Members are still assessing their strategies going forward and are in a private meeting to make decisions about future plans currently,” he wrote. “If and when Texas House Democrats breaking quorum decide to go home is squarely dependent on the actions the Governor, Speaker, and Texas Republicans in charge make with regard to prioritizing flood victims over redistricting that hurts Texans.”

That kind of sums up the situation in a nutshell.

Trump and the GOP are aggressively pushing Constitutional limits while Democrats are putting up a mostly performative opposition.

Despite Trump’s imploding popularity, the Democrats are even less popular and unlike Trump, have no competing vision of governance.

Expect the slide into a post-Constitutional order to continue.

I’ll give Ralph Nader the last word, if only because his strident doomerism seems a bit over-the-top:

The approaching greater dangers from Trump will come when he pushes his lawless, dictatorial envelope so far, so furiously, so outrageously, that it turns his GOP valets in Congress and the GOP-dominated US Supreme Court against him. Add plunging polls, a stagflation economy, and impeachment, and removal from office would become a political necessity for the GOP in 2026 and beyond. In 1974, the far lesser Watergate transgressions by President Richard Nixon resulted in Republican Senators’ demanding Tricky Dick’s resignation from office.
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If Trump were to be impeached and removed from office, would he try to stay in office? Here is where a real constitutional explosion can occur. He would have to be escorted from the White House by US Marshals who are under the direction of toady Attorney General Pam Bondi. The Supreme Court has held that the Constitution grants “the sole Power” to try impeachments in the Senate and nowhere else. Thus, the courts would provide no remedy to a lawless president wanting to stay in power.
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Little restraint on lawless Trump from the Congress and the Supreme Court, and only feeble, cowardly responses by the flailing Democratic Party (and the Bar Associations for that matter) thus far, make for the specter of violent anarchy and terror.

Trump has fatalistic traits. Armageddon shapes his ultimate worldview. Ponder that for a dictator with his finger on more than the nuclear trigger.

Here’s hoping Ralph’s overstating his case.