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Some years have passed since I last visited Washington,
D.C., so I was stunned when President Trump on Sept. 30 cited it as evidence
justifying further occupation of select U.S. cities by U.S. military forces.
"It's embarrassing to say this," he told some 800 top military
officers and their staffers, assembled from around the world at great expense.
"Now, I can't say it because we solved it, but Washington, D.C., was the
most unsafe, most dangerous city in the United States of America and to a large
extent beyond that. You go to Afghanistan, they didn't have anything like that.
You go to countries that you would think there's problems, they didn't have
that."
I await veterans deployed to wartime Afghanistan, Iraq or Vietnam who can bear witness to this claim. Meanwhile, amidst self-glorification of his largely unfounded role as global peacemaker; his self-righteous defense of renaming the Gulf of Mexico; his love of tariffs that sent consumer prices upward; his maligning of former commanders-in-chief who never, ever maligned him before the troops; and his crazed digression on the misuse of autopens – all of this soaked in half-truths and outright lies – President Trump in his address to top brass also made clear he is targeting "the enemy within" some of our major U.S. cities.
Who is the enemy within? One could argue the president
refers to illegal immigrants, though his remarks before properly stoic officers
at Marine Corps Base Quantico betray the likelihood he also seeks to use armed
U.S. military to settle political scores with mayors and governors who irritate
him and citizens whose crime is they didn't vote for him. Along with show
trials he envisions for such sorts as former FBI director James Comey, who
signed off on an investigation of unquestionable links between the Trump
campaign and the Russians, Trump counts on no interference from a supine,
Republican-run Congress or a cowed and complicit Supreme Court.
Further evidence Trump isn’t referring solely to immigrants
can be found in other references, including use of the phrase “enemy from
within” to describe Americans whom he despises or, by his Sept. 21 public
admission, hates. “I think the bigger problem is the enemy from
within – not even the people that have come in, destroying our
country,” he told Fox News’ Maria Bartiromo on Oct. 13, 2024, adding: “I think
the bigger problem are the people from within. We have some very bad people, we
have some sick people, radical-left lunatics, and they should be very easily handled
by, if necessary, by National Guard or, if really necessary, by the military.”
To their credit, our nation's generals and admirals showed
more discipline than Trump or Pete Hegseth, the Fox News showboat Trump tapped
as secretary of war. "And I told Pete," Trump recalled for them,
"'We should use some of these dangerous cities as training grounds for our
military, National Guard, but military.’ Because we're going into Chicago very
soon. That's a big city with an incompetent governor, stupid governor, stupid.
They threw him out of his family business. He was so stupid. I know the family.
He becomes governor. He's got money. Not money that he made, but he ran for
governor, he won. And now he criticizes us all the time."
The longer Trump rants, the sharper the focus of his animus
becomes. He now clearly conflates immigrants – whom he has vilified to great
political success since launching his presidential bid in 2015 – with Americans
who dare to offend, defy or protest him. The fact that on the eve of the
Declaration of Independence’s 250th anniversary there’s not more outrage among
everyday citizens, whatever their political stripes, about a president of the
United States using military personnel to bolster a masked de facto federal
police force in daily terrorizing and harassing our neighbors, friends and
co-workers would astound and dismay our nation’s founding generation.
Further proof that Trump’s use of federalized National Guard troops to occupy U.S. cities is partisan-driven: His failure to send armed troops to Texas, despite the July 4 shooting of a police officer during an ambush targeting a U.S. Immigration and Customs Enforcement facility in Alvarado and the Sept. 24 attack on federal law enforcement at Dallas’ ICE outpost that resulted in the deaths of a 37-year-old “illegal alien” from El Salvador who worked as a tree-trimmer in Texas and a 31-year-old “illegal alien” from Mexico who worked as a housepainter in Texas. Both were shackled during the attack. That is, they took deadly gunfire while in chains in America.
Yet on Oct. 5, Texas Gov. Greg Abbott contributed 400 members of the Texas National Guard to participate in Trump’s occupation of other U.S. cities, the very sort of takeover Texas “conservatives” once insisted was contemplated by the federal government against their own state. Irony: Few Texas “patriots” have stepped up to condemn such occupations. Further irony: As of March 15, 2024, Abbott as a public relations stunt highlighting "Operation Lone Star" had transported more than 105,000 migrants to blue cities, including more than 12,500 to Washington, D.C., more than 32,500 to Chicago and more than 1,500 to Los Angeles.
Abbott’s deploying the Texas National Guard to Illinois to
address a problem that he worsened as governor is the height of hypocritical
grandstanding. On Oct. 16 he did call out the National Guard to monitor an
Austin-based “No Kings Day” demonstration (or what he called an “Antifa-linked
protest”) to “protect Texans and their property.” Former Wacoan Bill Gaventa,
who lives in Austin, credited the gesture to political showmanship. Past
protests in Austin had come off without “any hint of chaos or altercation, the
crowds were often in very good spirits,” he posted on Facebook. Police and
state troopers were disciplined, sufficient – “helpful and reasonable.”
For the record, the Austin Police Department posted this upon the Oct. 18 rally’s conclusion: “Thank you to everyone who participated in the No Kings
March today. The rally remained peaceful, with no arrests reported. We’re
grateful to our community and event organizers for coming together to make sure
voices were heard safely and respectfully. Great job ATX!” Similar reports came
from other cities where flag-waving protesters gathered, including New York
City – after the Trump administration and Republican lawmakers spent days
vilifying protesters, claiming they would prove to be paid Marxists and “antifa
types” participating in a massive “Hate America” rally.
Which, of course, depends on how one defines “hating
America.” Scores of protesters in Waco gathered peacefully at the busy corner
of Valley Mills Drive and Waco Drive and waved signs, most crafted at home
rather than manufactured. Among them: “DEFEND DEMOCRACY,” “3 EQUAL BRANCHES,”
“LOVE LIKE JESUS,” “NO KINGS IN AMERICA SINCE 1776,” “NOT A PAID PROTESTER,”
“PUNISHMENT for DISSENT is FASCISM,” “NO CROWNS FOR CLOWNS,” “THIS ISN’T
NORMAL,” “WE WILL NOT BE QUIET,” “A SOCIETY BASED IN FICTION CANNOT FUNCTION” and
“PRISON WITHOUT DUE PROCESS IS A CONCENTRATION CAMP!!!”
One could see the widening divide across America under
Trump’s abuse of executive authority in the National Governors Association,
ordinarily bipartisan in its policymaking and outreach. NGA President Kevin
Stitt, Republican governor of Oklahoma – in some ways more conservative than
Abbott in neighboring Texas – voiced the sentiments of his own red-blooded
constituents had any governor done to them what Gov. Abbott did to the state of
Illinois with armed troops: “Oklahomans would lose their mind if [Gov. JB]
Pritzker in Illinois sent troops down to Oklahoma during the Biden
administration.”
Stitt may well have been motivated by the prospect of the
NGA imploding on his watch, given governors loyal to Trump in supporting his urban
militarization efforts and those opposing it. The governors of California and
Illinois understandably threatened to pull their considerable-sized states out
of the organization if it didn’t rally to fight the president’s militarization.
In an open Oct. 6 letter to Stitt in his NGA role, Illinois Gov. Pritzker reminded
colleagues of his joining Republican and Democratic governors in condemning a
far more benign move by the Biden administration in 2024 to place some National
Guard personnel under enhanced federal power:
This is precisely the federal and interstate overreach we
warned against – gubernatorial authority being trampled, state sovereignty
being ignored and the constitutional balance between states being attacked. If
the president continues overriding governors to deploy military assets into
another state against another governor’s will, we have abandoned the
foundational principles that have protected our republic for nearly 250 years.
The credibility of the National Governors Association – and our integrity as
state executives – rests on our willingness to apply our principles
consistently, regardless of which administration attacks them.
Meanwhile, Republican Oklahoma Attorney General Gentner
Drummond – probably to Stitt’s embarrassment – signed an Oct. 8 amicus brief
supporting the president’s calling out the National Guard to support
immigration enforcement in Illinois. The work of attorneys general of
Iowa, Montana, South Carolina and 15 other states, this brief supported Trump
on the grounds these individual states “bear numerous financial costs because
of illegal immigration including cost related to incarceration and supervisions
of criminal illegal aliens, the cost of criminal recidivism and public
education and healthcare costs.”
In an Oct. 11 amicus brief filed in the same lawsuit, 24
state attorneys general and governors accused Trump making false claims to
justify ordering the National Guard into communities “to usurp the role of
local law enforcement” – first in California, then Washington, D.C., and now
Oregon and Illinois. “Every state, red and blue, should be pushing
back against the president’s illegal use of the military to intimidate
Americans,” Washington state Attorney General Nick Brown argued. “It’s terrible
that we have to spend this much time protecting Americans from their own
president, but there is no other option with so much at stake for our future.”
Republican Tennessee Gov. Bill Lee, also among NGA
leadership, indicated his own placing National Guard personnel on the streets of
Memphis in October might continue beyond a month or so, though his full comment suggests a
limit to actual Guard participation while still bowing to Trump’s overall
law-and-order mantra. “We do know this is going to last for months and we have
just begun,” he told the press on Oct. 14. “In fact, I will tell you that it
will last forever because what we believe will happen is the numbers of law
enforcement agents from different agencies will change depending on the mission
at the moment. It’ll be mission-dependent.
“What we find this week will inform what we do next week,”
Lee continued. “But we know that the [immigration enforcement] surge that has
taken place currently … that surge will diminish at some point. But what we
learn from that surge, the collaboration that is happening right now between
the U.S. Marshals Service and the Memphis Police Department and the FBI and the
DEA and the Tennessee Highway Patrol, that collaboration that in some ways has
never been this effectively executed, that collaboration will be here from now
on. So this operation in some ways may never end.”
Lee's dispatching his state's National Guard came as part of the Memphis Safe Task Force, established by a Sept. 15 order of President Trump "to end street and violent crime in Memphis to the greatest possible extent through the promotion and facilitation of hypervigilant policing, aggressive prosecution, complex investigations, financial enforcement and large-scale saturation of besieged neighborhoods with law enforcement personnel." Only problem: All this ran counter to the state constitution, a point made by Shelby County officials in a subsequent lawsuit.
Among other things, the lawsuit cited a constitutionally grounded 2021 opinion by state Attorney General Herbert Slatery III that “only circumstances amounting to a rebellion or invasion permit the governor to call out the militia and, even then, the [state] legislature must declare, by law, that the public safety requires it.” And state legislators had not signed off on Lee's militarization of the Memphis area. Meanwhile, Jonathan Skrmetti, a chief counsul to Lee subsequently appointed to the office of attorney general in 2022, withdrew his predecessor's opinion.
Both Slattery and Skrmetti are Republicans.
Anyone halfway knowledgeable of our history knows America’s
enlightened founding fathers had deep reservations about their country’s armed
troops ever being turned inward against the people – sentiments derived from
when they themselves were subjects of contemptuous King George III and suffered
abuses from British troops before revolution erupted. These abuses manifested
themselves in not only the Declaration of Independence but our 1791 Bill of
Rights, including the First, Second, Third, Fourth, Fifth, Sixth and, arguably,
Tenth Amendments to the U.S. Constitution.
There’s also the Posse Comitatus Act, a post-Civil War initiative forbidding law-enforcement actions by federal troops with key exceptions that situations in Los Angeles and elsewhere don’t meet. Many self-imagined patriots in our midst are quick to invoke the act during Democratic presidencies – and quick to dismiss it as a necessity when Trump is in office. Yet as a district court reminded all of the president’s use of military forces in Los Angeles, the act was drafted by Congress in 1878 partially out of concern “that deploying the military domestically to execute the laws would enlarge the power of the executive.”
Even in 1878, sufficient numbers of Americans resisted that idea, at least outside of war, insurrection and natural calamity.
Signed into law by President Rutherford B. Hayes, the Posse Comitatus Act as updated boils down to one defining sentence: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.” The National Guard is generally excepted, given it is typically under control of a state’s governor, not federal authority, and thus more directly beholden to the people.
Yet, astoundingly, in its Oct. 29 call for more amicus
briefs to help guide it in Trump v. Illinois, the Supreme Court of
the United States revealed it is flummoxed over whether to allow the president
to send armed troops into more and more cities when the evidence justifying or
warranting such a show of federalized force is obviously questionable and the
legal grounds so constitutionally slippery. This is yet another of those moments that could shape the legacy of Chief Justice John Roberts' court, its reputation
already in tatters because of Trump-empowering rulings such as the Trump v. United States immunity decision in July 2024.
Does violation of the Posse Comitatus Act leave Trump and
co-conspirators open to another indictment and trial in the future,
assuming they one day leave office? Or would Trump benefit from the immunity
with which the Supreme Court has endowed him? Some Americans suspect Trump is
trying to divert attention from other troubles – persistent inflation and/or
involvement in the sex-trafficking ring overseen by dissolute, onetime pal Jeffrey
Epstein – by creating a ruckus in American cities. Others suspect he is setting
a precedent so he can use the military in Democratic cities to intimidate
voters during 2026 midterm elections.
If he loses one or both chambers of Congress during the
midterms, his presidential joy ride will become increasingly tumultuous.
All of this conjures up a vast conspiracy theory peddled by right-wing radio demagogues back in 2015 that claimed a major U.S. military training exercise in Texas and the Southwest dubbed Jade Helm 15 was in fact a federal plot to ensure then-President Obama could declare martial law, confiscate our guns and round up his political enemies. Republican leaders at the time shamefully failed to stand up for our military personnel and dismiss these rumors. No less than Gov. Abbott gave such anxieties credence by announcing he was ordering the Texas State Guard to "monitor" this long-planned federal training exercise.
After explaining that the seven-state military exercise was
to better prepare Army Special Forces for combat logistics in hostile terrains
such as Afghanistan and was primarily limited to expanses of private land set
aside by property owners who volunteered it without compensation, Lastoria
tried to reassure the chicken-fried mob before him: “First and foremost, we’re
truly invested in everybody’s personal rights and their privacy. That’s what we
live for. We live to support the Constitution of the United States and that’s
what everybody wants to live by and that’s what we’re here to do.”
Such words carried little weight among citizens inflamed by
Infowars: As one of the mob told the lone Army officer and county
commissioners: “Would the court be offended if I told the colonel that I didn’t
believe a single word that he just said?”
The crowd of 150 or so then cheered.
A younger-than-average Bastrop resident, during his turn to
speak, cited a U.S. Department of Homeland Security report on right-wing
radicalization issued during (he claimed) the Bush administration and its
contention that such radicals included “gun-owners, Christians, veterans and
people that believe in the Constitution – in fact, when I look around this
room, a lot of the people that are represented in this room are in that
document.” He then asked if Lastoria was aware of the document – Lastoria said
he was not – and whether the lieutenant colonel found it “kind of offensive
that the government would potentially label you a terrorist, sir?”
County Judge Paul Pape, 65, a rancher, ordained minister and
Republican, cut off further questioning of the besieged lieutenant colonel on
this particular line of thinking. However, Lastoria did advise that, so far as
gun owners, Christians, veterans and people who believe in the Constitution are
concerned, the inquiring Bastrop citizen should take up the issue with the
Department of Homeland Security. (So far as I can determine, the report cited
was issued in 2009 at the outset of the Obama administration.] “Two,” Lastoria
said, “when you say, ‘Hey, we’re all in that category,’ that really does tend
[to apply] to 90 percent of the military.”
At another point, the judge read a question submitted by the
audience: “When we have a federal government that cannot tell the truth, how do
we know what you’re saying is true?”
“I would just ask everybody not to mix apples and pumpkins,
OK?” Lastoria replied in his dead-pan, professional, straightforward manner.
“Let’s do it this way [referencing the lettering on his camouflaged uniform
that said “U.S. Army”]. This institution right here has been around for over
240 years. I have transitioned in this uniform and various shades of it under
five presidents, all of it peacefully. You may have issues with the federal
government, you may have issues with this administration. So be it. But this
institution right here has been with you for over 240 years. Period.”
The U.S. Army in the person of Lt. Col. Lastoria had its
hands full in Bastrop. Ironically, much of the uproar he faced had been
generated by Infowars correspondent Joe Biggs, an Army veteran of the Iraq war
who after working for Texas-based Infowars blowhard Alex Jones led fellow Proud
Boys in storming the U.S. Capitol on President Trump’s behalf on January 6. In
a 2023 sentencing memo, prosecutors claimed Biggs “viewed himself and his
movement as a second American revolution where he and the other 'patriots'
would retake the government by force.” Biggs apologized in court, saying he had
been "seduced" by the J6 crowd the day of the riot.
Convicted of several charges including seditious conspiracy
for seeking to block the peaceful transfer of power, Biggs was sentenced to 17
years in prison on Aug. 31, 2023, then freed by Trump’s Jan. 20, 2025, order.
He spent part of his subsequent freedom complaining about Trump only commuting
his sentence (and those of 13 others) rather than pardoning them outright with
most J6ers. Alongside a photo of his Sept. 28, 2006, Purple Heart, he lamented
online Sept. 29, 2025: “It was all for nothing, my country has abandoned me for
walking around a building for a few minutes. My President who asked us to come
won't even pardon me.”
Biggs’ self-pitying resentment – a defining feature of many
Americans during the Age of Trump – sits uncomfortably alongside memories of
Lastoria on April 27, 2015, trying to reason with Texans stirred up by Biggs’
work as an Infowars correspondent, including his description of the Jade Helm
15 training exercise as an “invasion” in a broadcast exchange with Jones on
March 19, 2015. “Even right now, while we’re all standing here,” Lastoria told
Bastrop residents who imagined themselves patriots and Obama an infidel, “there
are guys putting everything they got into it against an enemy that is very
determined to rid us off of this planet.”
In a series of probing 2015 Austin American-Statesman
interviews, at least some Bastrop County residents admitted possibly letting
their paranoia get the best of them. Some suggested the devastation of area
range fires a few years earlier left many easy prey. Troy Michalik, co-owner of
the Crosshairs Texas gun shop, argued that, “[f]rom a strategic standpoint, if
you’re declaring, you know, martial law, you’re taking over a country, why are
you starting here? It would make better sense if you take over an industrial
complex like Houston or a semi-conductor area like Austin or someplace that has
more than a bunch of burnt pine trees as a natural resource.”
In short, conquering Bastrop, Texas, was hardly the
strategic path to a dictatorial takeover of Texas, let alone the United States.
One of the most succinct but perceptive stories about the
"low-grade anxiety and mild unease" hovering over rural Texas was
then-New York Times Houston bureau chief Manny Fernandez's July 15, 2015, story
in which he surveyed sentiments in the town of Christoval, a wide spot in the
road south of San Angelo and Goodfellow Air Force Base. It begins with
Fernandez's knocking on the door of a government-wary, 53-year-old Navy
veteran: "A Confederate battle flag waved on the porch. A wooden sign next
to the screen door featured an image of a machine gun and read: 'Warning: The
door you are about to break down is locked for your protection!'”
Even more illuminating were reader comments at the end of
the online rendition of the story, including those submitted by Texans.
"The military men and women are not robots and they
took an oath to protect and defend the Constitution of the United States of
America," Texan Bill Thompson observed of the story on paranoia in Tom
Green County, Texas. "Both my sons are Marines and they would do just
that, which does not include taking the guns away from Americans. We all need
to remember that these military men and women are our sons and daughters and
they are not the enemy. There are countries where dictators install fear in the
public through terrorist tactics which in no way would be allowed here. If you
want to see Americans rise up in mass and overthrow a corrupt government, just
go ahead and try."
Another Texan lamented the rapidity with which country folks
succumbed to prejudices and suspicions: "Having lived in Houston and
Dallas a combined 34 years and traveled extensively throughout every eastern
part of the state, just like every other rural community, paranoia, religion
and politics are the talk of the town. Texas having 254 counties and vast
expanses of nothingness betwixt the cities in the western half of the state,
these conversations include firearms and ammunition. Life is simple for these
'folk' and the least disruption in their daily routine can cause Barney and
Aunt Bea to fret over much ado about nothin'."
A Carlsbad, California, commenter credited the Texas
paranoia to whipped-up vilification of the nation's first black president and
cited a 2010 Harris Interactive poll that indicated almost 67 percent of
Republicans believed Obama was a socialist; 61 percent suspected he wanted to
confiscate their guns; 57 percent believed he was a Muslim; 55 percent believed
"many" of his policy pursuits were unconstitutional; and 51 percent
believed he wanted to hand the nation over to a one-world government.
"This is all a result of the right-wing echo chamber from which many
Republicans get their ‘news’ and the Republican politicians who encourage them
to believe the lies."
Exhibit No. 1: In an interview with Bloomberg News in May
2015, Republican Sen. Ted Cruz of Texas, then managing a presidential campaign
to succeed Obama, clearly used the calamity for political ends: “You know, I
understand the concern that’s been raised by a lot of citizens about Jade Helm.
It’s a question I’m getting a lot. And I think part of the reason is, we have
seen for six years a federal government disrespecting the liberty of the
citizens and that produces fear. When you see a federal government that is
attacking our free speech rights, our religious liberty rights, our Second
Amendment rights, that produces distrust as to government.”
Not figuring as much in the national spotlight: Local
politicians trying to maintain societal regard for troops in training while
battling conspiracy theories granted legitimacy by Cruz and others. For
instance, in West Texas, some officials showed guts instead of pandering. As
Tom Green County Commissioner Bill Ford, 63, an area native, rancher,
scoutmaster, former school board member and self-employed contractor in
commercial and oil field construction projects told the San Angelo press of
troop-training in the region: “These are honorable military functions, these
guys are Green Berets, they have served our country facing harm’s way defending
our freedom, and I will stand up to defend their training here. The whole thing
has been blown out of proportion.”
Conspiracy theories, he said, are “just what people want to
believe.”
Operation Long Horn
So I saw in Waco. McGregor resident Frank M. “Gunner” Slaby,
a retired Navy chief warrant officer, a member of the Texas Maritime Regiment,
Texas State Guard, for 10 years, made clear his suspicions of Obama, even
comparing him to Josef Mengele in a May 5 letter to the Tribune-Herald: "I
view Texas Gov. Greg Abbott’s employment of the Texas State Guard in monitoring
the U.S. military training exercise 'Jade Helm 15' simply as Abbott fulfilling
his fiduciary obligation in his position as 'commander in chief of Texas
military forces. The Texas State Guard – by law – works strictly for the
governor and cannot be federalized. That is a very important fact to consider
with the likes of President Obama as commander in chief of the U.S. military.”
Slaby then quotes Eldridge Gerry from founding times,
specifically his concerns in Congress on Aug. 20, 1789, over the proposed
wording of what became the Second Amendment (and what Mr. Slaby may or may not
have realized involved the implied meaning of the modifying clause of the
amendment, regardless of dubious reinterpretations in later times): “What, sir,
is the use of a militia? It is to prevent the establishment of a standing army,
the bane of liberty. Whenever governments mean to invade the rights and
liberties of the people, they always attempt to destroy the militia, in order
to raise an army upon their ruins.”
Another of conservative persuasion, David Anderson of Waco,
drolly dismissed conspiracy theorists and alarmists for giving the federal
government "much more credit than it deserves. Government is far too
inefficient and inept to do something as complicated as blow up the World Trade
Center and make it look like a terrorist attack. These are the same people who
couldn’t set up a website where medical insurance can be purchased [through the
Affordable Care Act during the Obama presidency]. It’s even more sad that Texas
Gov. Greg Abbott’s office thought such silliness was worthy of a response. A
lot of us don’t trust government for the very reason that it is not competent
enough to pull off a 'Mission Impossible.'”
My reaction at the time, stated very directly in the Waco
Tribune-Herald: Only in Texas could a bunch of mostly over-the-hill armchair
“patriots” trip over themselves in embracing the then-sainted memory of former
U.S. Navy SEAL Chris Kyle, then turn around and make it harder for SEALs and
Green Berets like Kyle to train at home so they didn’t get killed in faraway
conflicts, fighting battles the rest of us wouldn’t condescend to pay for with
our taxes, let alone fight. In the end, no martial law was declared amidst
summer Jade Helm 15 training exercises, no people were corralled and
"processed" at shuttered Walmarts and no confiscation of guns
transpired.
Oh, and, yes, President Obama never talked, before, during
or after Jade Helm 15, of deploying troops against “the enemy within” or raised
fanciful notions of one day being a dictator.
Harvard-trained constitutional scholar that he is, Obama
dutifully left at the end of his two-term presidency. In fall 2015, when
America’s only black president was asked by a GQ interviewer to cite his
favorite conspiracy theory, one might have guessed he would cite Trump’s
spurious 2011 claim that Obama was foreign-born and not a Christian. Obama’s
droll answer: “That military exercises we were doing in Texas were designed to
begin martial law so that I could usurp the Constitution and stay in power longer.
Anybody who thinks I could get away with telling [first lady] Michelle I’m
going to be president any longer than eight years does not know my wife.”
In reflecting on Trump’s declared war on select U.S. cities,
I found amusement in some 2024 reminisces on the social-media Reddit about Jade
Helm 15. “Was a recruiter in Texas when this was going on,” one individual
recalled. “We had people coming into our office asking about it. Whenever we
were out and about and someone asked us what we were doing, we’d always say
‘looking for jade helm targets.’” Another observed: “Naturally it grew into an
unhinged thing about martial law, thanks to nuts like Alex Jones, and that the
Army had taken over a Walmart (or something like that). People were thinking
the satellite/commo trailers were death rays and stuff. It got to the
point that my buddy and I were approached by actual civilians about Jade Helm
when in uniform and we'd just play along with it. ‘Yeah, tomorrow we're doing
death-ray training at the Whataburger,’ etc. Good times.”
Trump, whose brusque charisma, infectious demagoguery and
rumormongering accelerated right-wing propaganda to degrees sufficient to forge
paranoia about a government “deep state,” all-out hatred for fellow citizens
with different political inclinations as well as deportation for immigrant
murderers and rapists, had only declared his presidential candidacy in June
2015. Yet even he lent little credence to Jade Helm jitters at the time. Aside
from a few letters to the editor and eruptions in a few places such as Bastrop,
I never personally heard anyone cite Jade Helm 15 as a concern and the county
of my residence was Republican and conservative. What stunned me were
high-ranking Republicans such as Abbott, Cruz and Sen. John Cornyn who fed
constituent fears by suggesting the training exercises rated vigilance. In
pandering to such talk-radio, they revealed themselves as likely patsies once
Trump consolidated power during his second presidential terms. Consequently,
many gullible and bewildered Americans were left emotionally conditioned to
place all their trust in Trump.
Ultimately, Jade Helm demonstrated the political and
societal change transforming Americans, especially considering Operation Long
Horn conducted in Lampasas, Texas, 63 years earlier. The operation was the
biggest “war game” ever held by the U.S. military in peacetime and saw some
115,000 troops battle over the town and surrounding area, complete with
“aggressor” forces that briefly captured and occupied Lampasas, establishing
mock control of news media and setting curfew for obligingly subservient townfolks.
Yet this provoked little uproar, possibly because of shared confidence after
World War II and concern about global communism.
Fort Hood, some 45 miles south of Waco, hosted the exercise
with air traffic largely coordinated by Goodfellow Air Force Base in San
Angelo. The Lampasas paper published rules for citizens, including this: “It is
customary for all civilians to remove their hats and bow when passing an
Aggressor Soldier.” The city was “liberated” from the “aggressors” on April 9,
1952, a historical marker in the area states: “The $3,300,000 exercise left
local residents with damaged ranch land, outbuildings, fences and gates, as
well as spooked livestock, but also gave them an opportunity to experience war
in their own community.”
Ironically, this is the era so many Make America Great Again
adherents seem to imagine when they contemplate returning America to better
times – uniform facts furnished by legitimate news media without bias,
trustingly digested by the public; faith in political leadership (Truman, a
Democrat, was president, soon followed by Eisenhower, D-Day supreme commander,
then Kennedy, a former PT boat commander in World War II and a vigorous
anti-communist); racial segments of society co-existing peacefully, separate but
somewhat equal; and U.S. Army personnel based out of a fort named for gutsy but
blundering Confederate Gen. John Bell Hood.
America in 1952 and 2015 proved very different worlds, the
latter aggravated by civil unrest over race, poverty and the Vietnam War;
“forever wars” growing out of the 9/11 terrorist attacks; election of the
nation’s first black president; swelling power of the oligarchy; and, perhaps
most of all, evolution of propaganda media masquerading as news to which many
Americans who imagined themselves more patriotic than their neighbors became
addicted, in the process coming to the conclusion that making America great
again depended not only on deporting an invasion of immigrants but vanquishing
fellow citizens who saw matters differently.
Questions raised by the Bastrop folks in 2015 during the
Obama administration proved far more warranted in 2025 during the Trump
administration, including its dispatching of armed troops to two more
Democratic-controlled cities, Chicago and Portland. On Oct. 5, for instance,
Trump flat-out lied in claiming that “Portland is burning to the ground,
insurrectionists all over the place,” when Portland police insisted the city
was not on fire and protests were confined to a city block
easily managed by Portland law enforcement personnel without ordering in (and
at enormous taxpayer expense) the National Guard.
President Trump now threatens to transform the all-American,
beer-and-hot-dog, melting-pot city of Chicago into a war zone, blackening
reputations of any military personnel tasked with aiding immigration agents
who, among other things, stormed a five-story apartment complex via
military-sized vehicles and helicopter drops on Sept. 30 as families – some
immigrants, some citizens – slumbered. As one citizen told the Chicago
Sun-Times after being arrested and restrained before eventual release: “I asked
if they had a warrant and I asked for a lawyer. They never brought one.”
On Halloween, shocked residents of the mostly white Chicago
suburb of Evanston witnessed, following a collision between a U.S. Border
Patrol vehicle and a civilian automobile a block or so from a school, a
federal agent repeatedly punch a man in the head with his fist while the man
was pinned to the pavement. Meanwhile, other mostly masked federal agents stood
by, ready to deter with pepper spray any of the clearly outraged residents who
tried to stop the beating. Federal officials later claimed the agent’s blows to
the subdued individual were “defensive strikes.” Video footage also shows a
federal agent leveling a gun at a neighborhood resident.
So where is all the one-if-by-land, call-to-arms outrage of
self-styled minutemen, warmed-over tea partiers and supposed constitutional
originalists now that armed military personnel are being ordered to quell “the
enemy within” as the definition of “enemy within” expands to include citizens
and politicians whom Trump not only condemns but threatens with jailing? The
deafening silence of such “patriots” as such forces facilitate the trampling of
fundamental constitutional rights in blue cities extinguishes any complaint
they may one day make regarding federal overreach by yet another presidential
administration for which they did not vote.
No less than 90-year-old physician, political gadfly and
stubbornly principled libertarian Ron Paul, the former Texas congressman and
presidential candidate whom right-wingers love to quote till his generally
anti-government principles prove inconvenient in their partisan pursuits,
condemned the military occupations of cities across the United States. “We have
a lot of characteristics of a police state, but it didn’t all happen in the
last week or so,” he said during his Oct. 6 podcast, “even though right now,
with the new administration, I think we’re moving more rapidly toward a police
state and that, to me, is very serious.”
He also acknowledged the merit in deporting certain
immigrants.
“I can understand very clearly why a lot of people would
support this and say, ‘Well, we have to stop them when I saw them ransacking”
and all [that] you hear about the crimes committed by some of these people who
are illegal,” Paul conceded. “But that has nothing to do with, really, the
issue we’re talking about. We’re talking about a standing army and a military
state and does the federal government have this obligation to send troops? And
now it isn’t just one time, you know, it’s several times and they’re lining up
the cities [to militarily occupy]. ‘Oh, we got way too much crime in your city,
we’re sending in the troops!’ Bad situation.
“I hope it resolves itself in a favorable way,” he said,
“but I’m not overly optimistic.”
Yet when Paul marketed his views in entrepreneur Elon Musk’s
town square of X, he found his insights no longer relevant. Example from a
person who identified himself as Sheepherder666: “I usually agree with you 100
percent. But this military is the only way, we’ve been past the point of no
return for decades now, it’s gotta stop now while we have control.” Another who
touted himself as “Boat Rock” and free and sovereign opined: “If the local and
state LEOs would protect the federal agents enforcing immigration laws, there
will be no need for the National Guard. But they won't, so fuck them. The
Insurrection Act is coming.”
“Ron, I love you,” another posted on the prospect of a
military state in U.S. cities while illegal immigrants were flushed from the
nation. “Until this year you were the only politician worth a damn. From a
principled standpoint, I don't like it either. But times have changed. It has
literally become life or death. You don't get upset [that] the captain is
yelling when a boat is sinking. You plug the holes.” And randomUser1776, who
stated on his home page that “[t]he answer to 1984 is 1776,” informed Paul: “You
see the libertarian beliefs fall apart in times of crisis. It's really not a
feasible ideology when an enemy is advancing on your civilization.”
“Ron Paul is right and the people in the replies can move to
Myanmar or Belarus if they don’t want to live in a free country,” one Paul
apologist wrote. “It is unfathomable that we’ve gotten to a point where society
is so uneducated and brainwashed they’d defend the U.S. government using troops
against their own citizens on U.S. soil arbitrarily. People defending arbitrary
use of the National Guard or domestic use of the military are an example of the
Dunning-Kruger effect. You are the Asch conformity experiment. You are the
Milgram experiment. You need to learn about federalism, decentralization and
study the framers of the Constitution.”
This spirited defense of the old libertarian’s once-valued
viewpoints probably befuddled some reading it, though it neatly fits the Age of
Trump. The Dunning-Kruger effect describes people of limited knowledge and
abilities who lack sufficient recognition of their shortcomings and opine away
with the greatest of ease. Asch conformity experiments involved people who, in
denial of obvious facts, stated the opposite to conform and socially and
politically fit into a preferred group. The Milgram experiment studied those
willing to override their own decency and morality and inflict physical harm on
others in obedience to commanding authority figures.
Incidentally, one individual who initially criticized this
educated defender of Ron Paul, only to be served an in-depth explanation,
afterward posted admiration. “Good to see respectable libertarians still
exist,” this self-described Christian posted. “I appreciate your response and
learned a few things there. I agree and disagree with how you see it/argue it,
but I think your argument is solid. I would have agreed with you when I was
younger and when society wasn’t devolving as rapidly as it is now. To me,
society needs a correction. You are following a framework to limit any
corrections. I want to use the framework to enforce corrections.”
Not only are many Americans who tout themselves as
“conservatives” revealing their embrace of an ideology falling somewhere
between right-wing, torch-carrying populism and unqualified fascism – the
latter complete with tenets of autocracy, militarism, suppression of opposition
and subordination of individual interests to benefit the nation or its head of
state – but many also refuse to accept facts about how exaggerated
administration accounts of civil disobedience are. These Americans assume
without question the claims of President Trump, notwithstanding exaggerations
or falsehoods about almost everything of which he speaks.
Trump & the courts
In her Oct. 10 ruling temporarily preventing the military
occupation of the Chicago area, District Judge April Perry, a Biden appointee,
made clear based on clashing testimony from the Trump administration and
Chicago law enforcement that protesters have not regularly materialized in
sufficient numbers or undertaken violence sufficient to overwhelm Chicago law
enforcement. What’s more, local law enforcement officials said use of chemical
agents by federal immigration personnel “has often been arbitrary and indiscriminate,”
sometimes practiced on crowds as small as 10 people.
“Here, there has been no showing that the civil power has
failed,” Perry writes in her option. “The agitators who have violated the law
by attacking federal authorities have been arrested. The courts are open and
the marshals are ready to see that any sentences of imprisonment are carried
out. Resort to the military to execute the laws is not called for.”
And for any in the Trump camp who still insist on
constitutional originalism as a tenet, the ruling makes clear the reservations
of America’s founders about armed troops patrolling American cities and
communities. For instance, the judge noted, “in response to a proposal to add
language to the Constitution [in 1787] which would empower the federal
government to ‘call forth the force of the Union’ against states that passed
laws contravening those of the union, James Madison moved successfully for its
removal, opining that such use of force against a state ‘would look more like a
declaration of war than an infliction of punishment.’”
Which certainly fits the needlessly belligerent rhetoric of
the Trump administration, including the president’s Sept. 6 meme showing him in
the guise of amoral, warmongering Army Cavalry Lt. Col. Bill Kilgore from the
1979 film “Apocalypse Now” but with the Chicago skyline in flames substituted
for the jungles of Southeast Asia. Posted after Trump with great fanfare
renamed the Department of Defense the “Department of War,” the meme offers
these quotes from the commander in chief, full of typical swagger and bullying:
“I love the smell of deportations in the morning. Chicago about to find out why
it’s called the Department of WAR.”
Judge Perry also notes how, in ratification debates over the
Constitution in 1788, patriot Patrick Henry “expressed fears that the language
of the Militia Clause [of the Constitution] allowing Congress to have the
militia called forth to execute the laws of the Union would open the door to
federal troops engaging in domestic law enforcement.” During this same period,
Alexander Hamilton – who as an aide-de-camp to General Washington knew
something of military matters – considered in Federalist No. 29 the spectacle
of imposing armed troops on the people absurd, given such conduct would surely
earn the would-be usurper “universal hatred.”
Hamilton clearly never anticipated hatred seeping into so
many everyday Americans – and not for an obvious, would-be tyrant but for their
fellow everyday citizens.
The judge also invokes the concept of state sovereignty –
once a cherished tenet of Texas Gov. Abbott, particularly during his days as
state attorney general – in regard to the presence of the Texas National Guard
in Chicago against the wishes of Illinois Gov. Pritzker: “The court is not
persuaded by defendants’ argument that plaintiffs (Illinois, Chicago) cannot
challenge deployment of the Texas National Guard because the Illinois governor
has no legally protected interest in controlling the militia of another state.
This misses the point: Plaintiffs’ claimed injury is not loss of an ability to
control or command but the loss of its own sovereign rights.”
While District Judge Karin Immergut, a Trump appointee,
correctly describes the acts of some Portland protesters earlier in the year as
“inexcusable” – shining a high-powered laser into the eyes of an immigration
agent, for instance – she notes evidence indicating that Portland law
enforcement agencies had contained the protests to a degree that hardly
justified Trump’s Department of War dispatching National Guard to the scene.
Subsequent protests highlighted by activists dancing and prancing in inflatable
outfits of frogs and dinosaurs and unicorns – well-publicized by the press
nationwide – underlined Immergut’s point.
Notwithstanding the mostly innocuous scene in Portland – and
police arrests of the more troublesome protesters – Homeland Security Secretary
Kristi Noem during an Oct. 8 White House cabinet meeting reported of her
meetings in Portland with the governor, mayor, chief of police and
superintendent of the highway patrol, “They are all lying and disingenuous and
dishonest people.” Portland Mayor Keith Wilson meanwhile said the federal
government’s actions “undermine local authority, erode public trust and escalate
tensions rather than resolve them.”
Judge Immergut in her Oct. 4 opinion also shrewdly defers to
a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that
bowed to Trump in deploying armed troops in Los Angeles earlier in the year,
quoting the panel’s cited precedents as her guiding light, as this excerpt
demonstrates:
Finally, the president’s own statements regarding the
deployment of federalized National Guardsmen further support [the judgment]
that his determination was not ‘conceived in good faith’ or ‘in the face of the
emergency and directly related to the quelling of the disorder or the
prevention of its continuance.’ Despite the ‘minimal activity’ outside the
Portland ICE facility in the days preceding September 27, 2025, President Trump
directed Secretary Hegseth ‘to provide all necessary Troops to protect War-ravaged
Portland and any of our ICE Facilities under siege from attack by Antifa and
other domestic terrorists.’ Two days before that directive, the president
claimed that Portland has ‘professional agitators’ who are ‘paid a lot of money
by rich people,’ ‘anarchists’ and ‘crazy people’ who try to ‘burn down
buildings, including federal buildings.’ Whatever the factual basis the
president may have for these allegations, nothing in the record suggests that
anything of this sort was occurring ‘every night’ outside the Portland ICE
building or in the City of Portland in the days or weeks leading up to his
September 27 directive.
Immergut subsequently delivers her conclusion, drawn from
close adherence to legal precedent demanding strict attention to hard facts.
“In sum, the president is certainly entitled ‘a great level of deference’ in
his determination that he ‘is unable with the regular forces to execute the
laws of the United States,’” she writes. “But ‘a great level of deference’ is
not equivalent to ignoring the facts on the ground. As the Ninth Circuit
articulated, courts must ‘review the president’s determination to ensure that
it reflects a colorable assessment of the facts and law within a ‘range of
honest judgment.’ Here, this court concludes that the president did not have a
‘colorable basis’ to invoke [U.S. Code] § 12406(3) to federalize the National
Guard because the situation on the ground belied an inability of federal law
enforcement officers to execute federal law. The president’s determination was
simply untethered to the facts.”
Incidentally, in an Oct. 8 amicus brief filed in the
Illinois case, the America First Legal Foundation argued that the Ninth Circuit
ruling involving Trump’s dispatching armed troops to Los Angeles was flawed in
its claiming that, whatever else, such presidential determinations are
reviewable by federal courts for “good faith” under a “highly deferential”
standard that generously grants such presidential determinations a
“presumption” of legality. To venture into the legal weeds briefly, America
First lawyers said the otherwise accommodating Ninth Circuit Court of Appeals
muddled its argument by quoting “out of context” a 1932 Supreme Court case
involving a Texas governor declaring martial law in four oil-producing counties
to regulate oil production. The America First Legal Foundation – co-founded by
Trump adviser Stephen Miller, responsible for so much of the public uproar over
immigration transgressions in 2025 – also dismissed Tenth Amendment arguments
on the contention that, under the Constitution, “the states fully ceded to
Congress their power to ‘provide for calling forth the militia to execute the
laws of the union.’”
The notion right-wingers would ever argue such a viewpoint
even a year earlier is unimaginable.
What also distinguishes the opinions by Immergut and Perry
are their inclusions, amidst sober, factually grounded statements and carefully
measured text, of President Trump’s out-of-place rhetoric, drawn from Oval
Office rants, social-media outbursts and wildly extemporaneous, off-point
impulses made during presidential addresses, leaping from the page at the
unsuspecting reader because their very audaciousness, imprecision and
recklessness. In her wonderfully comprehensive Oct. 10 opinion arguing that Chicago
and Illinois law enforcement have matters of crime well in hand and that
dispatching military onto peaceful city streets defy the wishes of the mayor
and governor (and thus violate the Tenth Amendment), Perry notes the
president’s longstanding belief that crime in Chicago is out of control. She
quotes him as saying “we need troops on the streets of Chicago, not in Syria,”
and how, “[i]f Chicago doesn’t fix the horrible ‘carnage’ going on … I will
send in the Feds!” and how “[w]e will solve Chicago within one week, maybe
less. But within one week we will have no crime in Chicago.” She quotes Trump’s
unquestionably absurd Sept. 2 social-media post, given crime and warfare
everywhere from Gaza to Ukraine: “Chicago is the worst and most dangerous city
in the World, by far. Pritzker needs help badly, he just doesn’t know it yet. I
will solve the crime problem fast, just like I did in DC. Chicago will be safe
again, and soon.” There’s Trump’s Sept. 3 fundraising email, which presses
potential donors by stating: “I turned our Great Capital [Washington, D.C.]
into a SAFE ZONE. There’s virtually no crime. NOW I WANT TO LIBERATE CHICAGO!
The Radical Left Governors and Mayors of crime-ridden cities don’t want to stop
the radical crime. I wish they’d just give me a call. I’d gain respect for
them. Now hear me: WE’RE GOING TO DO IT ANYWAY.”
These aren’t the grave, carefully articulated arguments of a
dignified president very reluctantly sending troops into U.S. cities against
250 years of tradition and foundational law discouraging such spectacles;
they’re the ravings of a madman. They, again, reveal an individual either
deeply ignorant of long-established American principles or contemptuous of them
or both. They recall the feverish inclinations of a carnival barker and strike
one as more worthy of World Wrestling Entertainment bombast than inclusion
among the visionary utterances of Thomas Paine or Daniel Webster or Abraham
Lincoln or Franklin D. Roosevelt or, for that matter, Barack Obama or even
George W. Bush for all his amusing but innocent malapropisms. And by including
such reckless Trumpian rhetoric in somber, thoroughly researched opinions,
these judges invite appeals jurists who might reverse their orders to risk
sullying their own judicial reputations by associating themselves for all
posterity with such on-the-record presidential ravings. In parading forth such
vivid contrasts, Immergut roots her decision in the cautions of the Framers,
quoting James Madison’s Constitutional Convention address in Philadelphia in
1787: “A standing military force, with an overgrown executive, will not long be
safe companions to liberty. The means of defence [against] foreign danger have
been always the instruments of tyranny at home.” To which Immergut adds her
view: “This historical tradition boils down to a simple proposition: This is a
nation of constitutional law, not martial law. Defendants [the Trump
administration] have made a range of arguments that, if accepted, risk blurring
the line between civil and military federal power – to the detriment of this
nation.”
Both Immergut and Perry also find the president’s actions
likely violated the Tenth Amendment, which encapsulates the very principle of
federalism – once an ironclad principle of American conservatism, now forsaken
by Republicans amidst partisanship and political subservience to the Trump
White House. Immergut also added vigor from an amicus brief filed by the state
of California and Gov. Newsom. Among other things, the brief quotes Los Angeles
Assistant Police Chief Daniel Rodriguez in stressing the added difficulty of
coordination in combustible situations involving the public. “The presence of
the Guard poses a challenge to law enforcement,” the brief says, “because there
are difficulties maintaining clear communications and unified command where
National Guard members [quoting Rodriguez] ‘are not familiar with the rules of
engagement, the laws of arrest or rules and policy regarding the use of force
in policing and domestic law enforcement.’ Not only are the federalized troops
not appropriately prepared to serve in a civilian law-enforcement capacity,
their presence taxes local law enforcement and interferes with their ability to
protect the public.”
An Oct. 8 amicus brief, filed at the district court level
in State of Illinois v. Trump by several former secretaries of
the Army and Navy and retired four-star admirals and generals including retired
Air Force Gen. Michael Hayden, former director of the Central Intelligence
Agency and the National Security Agency, reinforces the prospect of trouble
arising when troops are added to the law-enforcement mix. It expresses concern
“that any troops in this deployment tasked with activities relating to law
enforcement are not set up for success, with potentially grave risks of
escalation or confusion given their lack of experience with domestic law
enforcement. Indeed, few Guard members have had more than cursory
law-enforcement training, inviting confusion and disagreement over what
constitutes appropriate conduct in contentious civilian situations and risking
miscalculations in the heat of the moment. Nonetheless, Secretary Hegseth
signed an order authorizing the Guard members deployed to Washington, D.C., to
carry weapons as part of their mission.” In short, reliance on the National
Guard as a routine risks another Kent State massacre amid growing turmoil, much
of it aggravated by the commander in chief.
The amicus brief from the generals and admirals and former
secretaries expresses a further concern, practically inviting confrontation and
even death:
The risks of politicization under these circumstances are
profound and not speculative, especially where the president has, in his
official capacity, overtly pitted the military against his professed political
opponents. In a recent speech before U.S. Army personnel at Fort Bragg,
President Trump repeatedly referred to the Los Angeles protests and denounced
the governor of California, while encouraging service personnel to cheer as if
at a political rally. Speaking in advance of a military parade held in observance
of the Army’s 250th birthday, President Trump said, “For those people that want
to protest, they’re going to be met with very big force.” While the president
is entitled to criticize his political opponents, involving the military in
domestic political skirmishes risks harming the military’s ability to recruit
and retain service members and garner broad public support for its budgets and
programs, therefore undermining its ability to achieve its core mission of
protecting the nation. It is precisely for this reason that the military should
be kept out of domestic law enforcement whenever possible.
For the record, the Seventh Circuit appeals court largely
upheld Judge Perry's ruling, allowing federalization of National Guard troops
but forbidding their actual deployment (at least for the moment) onto the
streets of Chicago, largely confining them to barracks. (Some Texas National
Guard personnel were reportedly sent back to Texas because they were overweight
and failed to meet Secretary of War Hegseth’s standards of physical fitness.)
Citing the Tenth Amendment, the Seventh Circuit noted that the arrival of
troops from Texas – "an incursion on Illinois’s sovereignty" – made
the constitutional injury “especially significant.” It also noted "the
public has a significant interest in having only well-trained law-enforcement
officers deployed in their communities and avoiding unnecessary shows of
military force in their neighborhoods, except when absolutely necessary and
justified by law."
Yet a three-judge Ninth Circuit appeals court panel of which
two, Ryan Nelson and Bridget Bade, were Trump appointees, initially cleared the
way for unleashing troops on the streets of Portland. In an Oct. 20 reversal,
they dismissed Tenth Amendment arguments by noting that the “authority to
federalize the National Guard is statutory, not constitutional” – another
example of the dangers inherent in a legislative body casually and lazily
delegating more and more of its power to a chief executive who can then ignore
in sufficiently thundering fashion the fine print setting forth congressional
conditions. The circuit court also neglects the fact that something “statutory”
may nonetheless prove unconstitutional, which is certainly how the
Supreme Court under Chief Justice Roberts increasingly views the hobbled Voting
Rights Act in redistricting matters.
Especially astonishing: The two Trump judges on the Ninth
Circuit panel faulted the lower court because it “substituted its own
assessment of the facts for the president’s assessments of the facts” when in
fact District Judge Immergut based her ruling on which set of conflicting facts
were most credible – certainly part of her job in making a decision. Judge Bade
charged that the district judge also “erred by placing too much weight on
statements the president has made on social media” – a decision that may well
highlight Bade’s credibility as a jurist as time passes and subsequent
generations marvel at the general nuttiness of the Trump administration and
those judges who dutifully and possibly fearfully legitimized his constant
abuse of power.
Bade and Nelson also made the colossal mistake of falling
into a Trumpian trap and deeming as legal precedent Martin v. Mott,
an 1827 case involving a New York militiaman who refused to answer President
Madison’s call to arms (issued via the governor of New York) to help battle the
British military invasion in the War of 1812 – hardly comparable to the
situation involving local and state elected officials resisting federal
overreach in violation of the Tenth Amendment and President Trump’s decision to
send in armed troops on the claim local law enforcement wasn’t sufficiently
backing the enforcement of immigration laws. The order Jacob Mott defied went
out in August 1814 – the same month invading forces torched Washington, D.C.,
including the White House. (Ironically, days after issuance of Bade and
Nelson’s opinion, Americans were shocked to see the entire East Wing of the White
House demolished on President Trump’s command, notwithstanding his earlier
assurances to the public that the wing would be barely touched for the $330
million ballroom he demanded.) Legal experts such as John Dehn, associate
professor and faculty director of the National Security and Civil Rights
Program at Loyola Law School, argued that the appeals judges misinterpreted
eminent Supreme Court Justice Joseph Story’s Martin v. Mott ruling
regarding overall authority of federal courts in reviewing the mobilizing of
troops for domestic purposes when the ruling in fact pertained only to the
question of military protocols – “discipline in the ranks, the
authority of the military chain of command and the security of the country.”
That is, Justice Story wrote on Mott’s obligations as a militiaman to his
commander in chief. No one at all argued in this instance whether the crisis
was sufficient for President Madison to call out troops. Indeed, the ruling was
unanimous. The crisis represents the only time since the American Revolution
that a U.S. city was occupied by a foreign power.
Judge Nelson strays further into choppy legal waters by
retreating to historic examples of federalized troops employed to address
citizen uprisings in the earliest days of the republic. Problem: Historians
have shown that Shay’s Rebellion and the Whiskey Rebellion were far larger and
far more consequential in scope than anything going on within a city block in
Portland, Oregon. During the Whiskey Rebellion, for instance, some 6,000 rebels
massed in Pittsburgh and attacked federal officials. Nothing at all like this
is evident on the streets of Portland or, for that matter, Chicago. As Circuit
Judge Susan Graber’s dissent properly notes in refuting Nelson’s argument,
“[t]hose rebellions shared several salient characteristics, including a large
number of participants relative to the population and to available law
enforcement, a wide geographic scope, evident organization and leadership,
widespread use of arms, intense ferocity and the creation of extreme difficulty
restoring control by means of ordinary law enforcement.”
Only Graber, a Clinton appointee, seemed to have any sense
of what was actually going on. Like District Judge Immergut, she found
credibility problems with the federal government’s depiction of events on the
ground in Portland, including vague claims of local law enforcement’s inability
to handle increasingly peaceful protests involving inflatable animals given to
dance. She also worried about what lay ahead. “Congress did not authorize
deployment in merely inconvenient circumstances, and Congress unquestionably
did not authorize deployment for political purposes,” she wrote in her powerful
dissent, one that will long overshadow the findings of her two Ninth Circuit
colleagues. “Article III commands that we enforce those limits. The majority’s
order abdicates our judicial responsibility, permitting the president to invoke
emergency authority in a situation far divorced from an enumerated emergency.
Today’s president seeks to bring troops into one set of states to enforce one
set of laws; a future president may seek to bring troops into a different set
of states to enforce a different set of laws. Partisans who cheer this
president’s use of troops to protect personnel who are enforcing federal
immigration laws would do well to consider whether they would be equally
pleased if a future president uses troops to protect personnel who are
enforcing laws that they vehemently dislike.”
Gaber suggests that what the Trump administration pursues
constitutes political showmanship rather than the genuine emergency Congress
imagined when delegating some of its power to the executive branch. She also
pushed for a larger panel of the Ninth Circuit to revisit the issue. This came
even as the Ninth Circuit and other courts anticipated some decision from the
Supreme Court to guide them all. “We have come to expect a dose of political
theater in the political branches, drama designed to rally the base or to rile
or intimidate political opponents,” Gaber wrote in her dissent. “We also may
expect there a measure of bending – sometimes breaking – the truth. By design
of the Founders, the judicial branch stands apart. We rule on facts, not on
supposition or conjecture, and certainly not on fabrication or propaganda. I
urge my colleagues on this court to act swiftly to vacate the majority’s order
before the illegal deployment of troops under false pretenses can occur. Above
all, I ask those who are watching this case unfold to retain faith in our
judicial system for just a little longer.”
Her faith was not displaced. On Oct. 28, the Ninth Circuit
decided it would rehear the case with a larger panel of 11 judges, in the
interim restoring Judge Immergut’s original order preventing actual deployment
of National Guard troops in Portland. Meanwhile, the Seventh Circuit Court of
Appeals, in backing to a significant degree Judge Perry’s concerns about
unleashing the National Guard in Chicago, drove home the problem with the
administration’s inappropriately leaning on Martin v. Mott as
justification for what it proposed to do in Chicago.
We do not think the holding of Martin can extend so far.
The court’s broad language must be understood in its context. The nation was
then at war with the most powerful empire on earth. That empire had actually
invaded the United States and was sacking its capital city in August 1814. The
court in Martin expressed incredulity at the prospect that every officer under
the president’s command could make his own determination whether an imminent
threat of invasion existed and could refuse to obey the president’s orders or
be subject to civil liability if he enforced what was later deemed an invalid
order. Here, by contrast, the question is whether courts, not subordinate
militiamen, may review the president’s determination under 10 U.S. Code §
12406, primarily as to whether political protests have become violent to the
extent that they constitute a rebellion or that the administration is “unable”
to execute federal law with the “regular forces” available to it.
King Trump and his court
Evidence of the chaos encouraged by the Trump administration
included indiscriminate use of gas in neighborhoods such as Chicago’s Old
Irving Park where children were reportedly on their way to a Halloween parade –
the very sort of transgression Trump was pressing National Guard personnel to
condone by supporting such actions. Americans grimaced as ICE officers (to
quote an Oct. 6 lawsuit by the resolute Chicago Headline Club, a non-profit
group of professional journalists in the Chicago area, and others) “suddenly
and without warning” fired pepper balls at David Black, senior pastor of First
Presbyterian Church of Chicago, striking him repeatedly in the head as he
“stood in the street, offering prayers and urging ICE officers stationed on the
roof of the Broadview ICE facility to repent from their unnecessarily brutal
enforcement of the immigration laws.” In a photograph that neatly defines
governmental abuse, Black is seen recoiling as he is sprayed in the face with
tear gas by immigration officers on the street. In an Oct. 27 filing in this
case, the Chicago Headline Club noted the CS gas employed against citizenry was
“prohibited under the 1997 Chemical Weapons Convention due to ‘concerns about
the indiscriminate nature of the weapons, the possibility of escalation . . .
and the unnecessary suffering they cause.’” In noting how journalists and
others “rightly wonder why defendants [the federal government] insist on
turning their city into something like a World War I battlefield,” the
plaintiffs cited such examples as a couple whose apartment was filled with the
gas during a recent incident and consequently feared for the health of the
child they were expecting:
Plainly, [Department of Homeland Security] defendants are
not merely enforcing immigration law. Immigration enforcement does not
typically require the daily use of tear gas on civilians in residential areas.
Instead, the government is regularly inflicting harm on civilians who are
simply protesting or observing defendants’ violent and unprecedented
paramilitary enforcement efforts in one of the country’s largest
municipalities. Plaintiffs suspect defendants are inciting violence in peaceful
residential neighborhoods to transform Chicago into the very “war zone” that
defendants use to justify the deployment of more federal force. Defendants are
engineering their own pretext for their presence and behavior in Chicago.
Deploying tear gas at the rate and in the manner that defendants have done is
entirely unnecessary. Consider that over the five-year-plus period between the
start of 2020 and today, the Chicago Police Department has responded to
17,200,000 dispatched events, it has made 276,000 arrests and it has deployed
tear gas on civilian populations zero times. Even in response to very large
protests during the summer of 2020, the Chicago Police Department never used CS
gas and nationally other police departments used CS gas infrequently or not at
all.
Even among Make America Great Again adherents who welcome
Trump’s mission of ridding the land of undocumented immigrants, all of this
should concern those still capable of rational thought in weighing the
political odds, given self-defeating tactics involving questionable, even
dangerous protocols to meet unrealistic administration quotas that over time
have drawn more and more criticism from Americans with some sense of decency,
perspective and Christian bearing. For instance, the aforementioned Oct. 31 pummeling
of a subdued man in the street by a U.S. Border Patrol agent as fellow agents
held outraged citizens at bay in a Chicago suburb – preserved on video shot in
the clear light of day – prompted Evanston Mayor Daniel Biss to call for
renewed neighborhood vigilance regarding federal agents whom he instructed to
"get the hell out of Evanston." Equally horrifying: an Oct. 10 video
of an unmarked van driven by masked federal agents that plowed into a car
driven by Chicago resident Dayanne Figueroa, a U.S. citizen and paralegal on
her way to work; rather than exchange information in a civil, orderly fashion,
agents emerged with guns drawn, dragged Figueroa from her vehicle, violently wrestled
her to the asphalt, handcuffed her and took her into custody, only to release
her hours later to citizen outrage. “The video evidence is clear: Agents
crashed into me,” Figueroa said in an Oct. 16 statement. “I was not involved in
any protest or related activity and I intend to seek justice for how I was
treated. I am confident the facts will speak for themselves. To those who
recorded this incident, thank you.”
Americans who failed to fully consider the consequences of Trump’s
vow of a mass deportation effort or assumed back in 2024 all of this was
campaign talk may well have reconsidered after a favorite Hispanic gardener or
a hardworking dockworker or dutiful bus boy – each performing some menial job in
America – was hauled off to an uncertain fate. Yet when pressed by CBS
newswoman Norah O’Donnell in an Oct. 31 interview on whether administration immigration
raids had “gone too far,” President Trump replied: “I think they haven’t gone
far enough.” He is betting a sufficient number of hardcore followers will cheer
such pursuits, considering either their fidelity through past transgressions or
their own bloodlust for cleansing the land. In Waco, where Trump kicked off his
successful 2024 reelection bid, at least some Wacoans who received daily fundraising
emails from Trump full of flattery and reassurance were left to consider their
community’s full embrace of Waco-based Mexican restauranteur Sergio Garcia
during the Bush presidency and its neglect of his deportation early into the second
Trump presidency – arguably a symbol of the transformation of the Republican
Party. “I love LEGAL immigrants – especially Mexicans!” Trump informed
followers in an email one day before the first anniversary of his reelection. “They
are hardworking. They open very delicious restaurants. They’ve got a
spectacular work ethic because they’ve craved to achieve the American dream for
as long as they’ve known. Total respect. OK, I’ll stop rambling… here’s my
question for every MAGA Patriot who’s reading this right now: Should we deport
EVERY illegal alien?”
Arguably much worse: Revelations the Pentagon on Oct. 8 ordered
that thousands of specialized National Guard personnel undergo civil unrest
training for possible deployment to major U.S. cities in 2026. One wonders: Is
further civilian aggravation via military intervention designed to deter voting
in diverse, Democratic-leaning neighborhoods during 2026 midterm elections or
simply to normalize U.S. military presence in America in the Age of Trump?
Whatever the case, it’s clear that Trump has declared war on Democratic
strongholds in America, initiating a civil war of sorts that some of his
followers have long craved, just so long as it doesn’t interfere with their own
lives. As one observer commented anonymously on an Oct. 30 Washington Post
account about the Pentagon’s training mission: “I've lived during WW2 and all
the wars since and I never believed that in the end this country would wind up
being a fascist state. All those lives lost just to have one psychologically
damaged man with the assistance of a shadow power structure bring it all down
while people go about their daily business as if nothing is happening.” With a
withering allusion to the spectacle of protesters in Portland, one veteran
lamented what the men and women in today’s National Guard face: “I am sure they
did not sign up to go after their own countrymen. I am also wondering what this
administration will consider a riot. A blow-up frog peacefully protesting does
not make it a riot. For information on what a riot looks like, they should
reference all the January 6 footage at the U.S. Capital. That was a true riot
by a mob, no matter what this administration and his followers
say.”
Incredibly, all of this unfolded amid Trump’s continued
insistence that he deserved the Nobel Peace Prize for exceedingly dubious
efforts to bring peace to faraway lands, even as he sought to appease America
First citizenry by quelling fellow Americans. When, as was expected, he failed
to secure his international prize and Jørgen Watne Frydnes, chair of the Nobel
Committee, was asked on Oct. 10 why President Trump had not been so honored, he
responded with an answer that culminated thus: "We only give the award to
people of courage and integrity." While one might argue the prize is based
on accomplishment in terms of world peace rather than one’s personal and
professional failings, no self-respecting “peace” committee could rationally
consider Trump for such an honor while he was making war on helpless cities on
the home front because of the mayors and governors the people in those cities
and states chose to elect or their electoral opposition to his own candidacy.
Unleashing masked men on select city streets and federalizing state militias to
support their disregard for due process, and all after seeking to undermine the
Constitution and overthrow a democratically elected government, culminating in
the violence of January 6, meant any awarding of the Nobel Peace Prize to Trump
would leave it forever open to mockery and contempt in the eyes of the entire
world. Only days later, President Trump offered himself the executive option of
pocketing up to $230 million for the harm done him when grand juries in 2023
indicted him on Department of Justice charges that sought to hold him
accountable for his efforts to overturn his 2020 presidential election loss as
well as hauling off sensitive national security documents when he left the
White House in January 2021 (and then resisting government efforts to retrieve
them). The charges were only dropped after Trump won reelection in 2024.
"It's awfully strange to make a decision where I'm paying myself,” the president
acknowledged to the press, “…but I was damaged very greatly and any money I
would get I would give to charity."
Making it more and more awkward for self-respecting
Trump-appointed jurists to side with him given his unhinged, hateful rants
online: a video the president posted during the Oct. 18 “No Kings Day” protests
of presidential overreach held in cities across the country, reportedly
attracting some 7 million people collectively. The AI-assisted video showed
Trump wearing a crown while piloting a fighter jet labeled “King Trump” that
soared above an American metropolis, at one point swooping down to drop what
appeared to be a massive load of feces on peaceful protesters in the streets
below. The verdict of historian Ruth Ben-Ghiat, an expert on fascism: “An
accurate representation of how this kind of leader really feels about those he
governs. Autocrats starve, kill, jail, impoverish and use and discard people
because they feel scorn for humanity.” Singer and songwriter Kenny Loggins
lambasted the president for using, without permission, his song “Danger Zone”
as the video’s soundtrack. “This is an unauthorized use of my performance,”
Loggins said. “Nobody asked me for my permission, which I would have denied,
and I request that my recording on this video is removed immediately. I can’t
imagine why anybody would want their music used or associated with something created
with the sole purpose of dividing us. Too many people are trying to tear us
apart, and we need to find new ways to come together.”
Given Trump’s incendiary remarks of Oct. 5 to some 10,000
sailors in dress-white uniforms in Norfolk, Virginia, while turning a salute to
the Navy into a self-glorifying Trump rally in which he vilified enemies, and
similar June 10 rhetoric before soldiers at Fort Bragg, N.C., during which he
branded protesters in Los Angeles “animals” and vowed to “liberate” the city,
one shouldn’t be at all surprised if someone is shot dead by a masked federal
agent, a riled-up protester or a National Guard soldier, conjuring what some of
us long in the tooth recall of the Kent State shootings of 1970 amidst
nationwide demonstrations over the Vietnam War and civil rights. The difference
between the late 1960s and early ’70s and now is that Americans then not only
assumed political stances, admittedly conflicting, based on the same set of
plainly reported facts in newspapers and via network news but also exhibited a
societal decency now lacking in many of us. Some Americans blessed with
reflective, critical thinking skills – so decried as “indoctrination” by
today’s MAGA sycophants – drew key lessons from the period, including the
dangers inherent in unleashing armed troops in settings where agitated
protesters, while seldom any threat to American democracy, can indeed misbehave
by, say, throwing rocks.
Some might well insist Trump would emerge blameless for any
civil unrest arising from his provocative words and actions. Yet historians,
legal scholars and political scientists will long debate whether his
belligerent, deceitful rhetoric to a crowd of outraged supporters on January 6,
2021 – including his use of the word “fight” or “fighting” some 20 times –
contributed to many of these “patriots” subsequently storming the U.S. Capitol,
many carrying “Trump 2020” campaign flags into battle against outnumbered
police officers. “If you don't fight like hell,” the president told the mob
just ahead of the battle, “you're not going to have a country anymore."
"In Vietnam, the Navy unleashed Operation Rolling
Thunder and deployed a brand new unit, the Navy SEALs, to tear up Mekong River
Delta," Trump told seamen in his swaggering Pattonesque way on Oct. 5.
"The problem with Vietnam, we stopped fighting to win. We would have won
easy. We would have won Afghanistan easy. We would have won every war easy. But
we got politically correct. Let’s take it easy. We’re not politically correct
anymore, just so you understand. We win. Now we win. We don’t want to be
politically correct anymore. And history will never forget that it was the
SEALs who stormed the compound at Osama Bin Laden and put a bullet in his
head."
All this overlooks the U.S. withdrawal from Afghanistan,
negotiated by Trump with militants who in hosting Islamic terrorists helped
facilitate the 9/11 attacks on America. All this overlooks Trump’s 2015
maligning of maverick Sen. John McCain’s status as a war hero because as a
naval aviator during the Vietnam War McCain’s aircraft was shot out of the sky
and he remained a stoic prisoner of war for five and a half anguishing years.
All this overlooks Trump’s four college deferments to avoid the military service
during this very same war and his further skirting of military duty because of
“bone spurs in both heels,” to quote his official explanation.
Swagger and saber-rattling
President Trump has continued his martial braggadocio amidst
mounting lies and exaggerations – this time on foreign soil – in addressing
troops on the USS Washington in Yokosuka Naval Base on Oct. 28, insisting that
he would use the military to enforce safe cities – “whether people like that or
not, that’s what we’re doing.” He again maligned former President Biden, this
time for Biden’s lying about being a pilot (a claim Biden never made); attacked
Democratic governors for daring to defend their states from federal
militarization of their cites; and invited military rank and file to join his
vilification of the “fake news media.” Besides falsely claiming to have ended
eight wars and a crazy digression about water, steam and magnets, Trump again
argued for his success in using troops on American soil. “Washington D.C., our
beautiful capitol, was a killing mess, people getting killed all the time. It
was very high crime. And we sent in our National Guard – again, great people. I
don't say that we're totally politically correct, that's OK. And now it's very
safe. Now, it's considered a very safe. It took 12 days, we got 1,700 people,
career criminals, many of which came in through Biden's open border, and they
infiltrated our nation's capital and we had a very unsafe capital.”
Trump’s swagger and use of the royal “we” in addressing
servicemen reminds me of some self-described Vietnam “grunts” with whom I spent
time in West Texas (notwithstanding my lack of military service). Ordinarily a
merry, live-and-let-live bunch, they could switch to anger at mere mention of
the shoddy reception with which some Americans greeted them upon their return
from war. They resented draft dodgers and those guilty of “stolen valor” who
claimed wartime service but didn’t actually serve in the war. This is why my
friends’ fervent support for Trump years later so stunned me; he seemed to
embody so much of what they understandably detested. Yet Trump’s resentment
probably invited their resentment, sufficient to cancel out his lack of wartime
dedication and military deferments. The old friend who served as a conduit to
these “grunts,” an infantry leader in Vietnam, spent his final years soaked in
social media poison – conspiracy theories, vows of vengeance by such sorts as
former Army Lt. Col. Michael Flynn and online gestures of adoration, obedience
and pseudo-patriotism such as a posted sketch of President Trump’s chiseled
likeness alongside those of Washington, Jefferson, Lincoln and Theodore
Roosevelt at Mount Rushmore. Of troop deployments to select U.S. cities, he
opined: “JUSTICE IS COMING!!!
One is reminded of the profound insight of retired Marine
Gen. Jim “Mad Dog” Mattis, who served for a time as President Trump’s learned
secretary of defense before finally parting ways with him over foreign policy.
During national uproar over the murder of former Texan George Floyd by
Minneapolis police, Mattis – acknowledging in a 2020 statement that Trump was
the “first president in my lifetime who does not try to unite the American
people, does not even pretend to try” – stressed the risks to both military and
civilians alike that come with weaponizing military personnel against “we the
people.” An unusually well-read student of history, philosophy and military
strategy whose favorite books included Henry Kissinger’s “World Order,” Michael
Walzer’s Just and Unjust Wars,” Marcus Aurelius’ “Meditations,” Guy Sajer’s “The
Forgotten Soldier” and Paul Kennedy’s “Rise and Fall of the Great Powers,”
Mattis elaborated on his concerns about misusing the military: “At home, we
should use our military only when requested to do so, on very rare occasions,
by state governors. Militarizing our response, as we witnessed in Washington,
D.C., sets up a conflict – a false conflict – between the military and civilian
society. It erodes the moral ground that ensures a trusted bond between men and
women in uniform and the society they are sworn to protect, and of which they
themselves are a part. Keeping public order rests with civilian state and local
leaders who best understand their communities and are answerable to them.”
Similar thoughts are made in a notable amicus brief
submitted to the Supreme Court in Trump v. Illinois by the
Chamberlain Network, a pro-democracy group composed of thousands of veterans,
many of whom served in the National Guard, Marine Corps or both. Since 2024 it
has been dedicated to combating political violence and growing polarization of
the U.S. military such as Trump seems intent on fostering. “The consequences of
granting the president virtually unlimited discretion to use the military for
domestic purposes would be profound,” the Oct. 20 brief argues. “Domestic
deployments to support law enforcement priorities pit soldiers against fellow
Americans; are naturally associated with the leader who ordered them and his or
her political party, not a national project to protect the United States; and
impose a significant burden on servicemembers. Such deployments harm
servicemembers and the military.” To continue:
One of the bedrock commitments of the military is
nonpartisanship. The commitment begins with a motivation to serve the country
and a common national identity. That commitment grows more resolute during
training, which demands apolitical duty and inculcates the value of a
nonpartisan military, and during service itself. The military trained amici
that regardless of racial, political, or other differences between them and
others, they were all brothers and sisters serving the country together. As one
amicus related, it was through service that he met America. Working alongside
people with radically different perspectives from every geography, they were
bound together by a common purpose.
Servicemembers have faith that elected leaders will use
servicemembers’ lives well, in the service of their country. When a political
leader takes servicemembers who signed up for public service and unnecessarily
forces them into a project that pits them against fellow Americans, he or she
violates that faith and undermines the core premise of national service.
Servicemembers should not be asked to participate in domestic conflicts except
in the most extreme circumstances.
If asked to deploy, though, the military’s command
structure and training require servicemembers to obey. Thus, if a commander
orders servicemembers to deploy to an American city, they would be trained to
believe that the reason is to fight an enemy. At the same time, servicemembers
are motivated and trained to protect Americans. Deploying them against
Americans creates a traumatic dissonance for those trained both to follow
orders and serve their country.
Adding to that traumatic dissonance is the potential for
violent confrontations with fellow citizens. National Guard members receive
little training in quelling civil disturbances, and active-duty troops
generally receive none. Faced with violence by some protesters, a servicemember
making split-second decisions may naturally fall back on his or her combat
training. If servicemembers wield military force that is better suited to a
battlefield than a city block, the bad outcomes are obvious, as the Kent State
shootings of student protesters of fifty years ago reflect. The possibility
that an interaction with civilians could take a tragic turn is a nightmare for
servicemembers.
The Chamberlain brief also raises the question of whether
military forces even have time for politically motivated distractions and missions.
“Our nation’s military is stretched thin,” it argues. “Troops are currently
stationed or deployed in more than 150 countries around the world, pursuing the
military’s core mission of protecting the United States against threats posed
by hostile foreign powers. National Guard servicemembers are particularly
taxed. In their civilian lives, they perform vital roles in their communities
as firefighters, paramedics, teachers, healthcare providers and more. They
spend a minimum of 39 days a year in military training and they are regularly
deployed within their states to respond to emergencies such as hurricanes and
fires. Increasingly since 9/11, they have also been deployed alongside
active-duty troops for overseas missions. As the former vice chief of the
National Guard Bureau testified in December 2024, National Guard units ‘have
virtually no time for additional missions or training.’”
The Chamberlain brief also raises the question of whether
military forces even have time for politically motivated distractions and
missions. “Our nation’s military is stretched thin,” it argues. “Troops are
currently stationed or deployed in more than 150 countries around the world,
pursuing the military’s core mission of protecting the United States against
threats posed by hostile foreign powers. National Guard servicemembers are
particularly taxed. In their civilian lives, they perform vital roles in their
communities as firefighters, paramedics, teachers, healthcare providers and
more. They spend a minimum of 39 days a year in military training and they are
regularly deployed within their states to respond to emergencies such as
hurricanes and fires. Increasingly since 9/11, they have also been deployed
alongside active-duty troops for overseas missions. As the former vice chief of
the National Guard Bureau testified in December 2024, National Guard units
‘have virtually no time for additional missions or training.’”
The brief's broader points about military personnel, whether
on active duty or through service in the National Guard, assume enhanced
relevance as the Supreme Court – its right-wing jurists in particular likely
seeking an escape valve to somehow appease Trump while remaining faithful to old-time
conservative tenets inherent in the Posse Comitatus Act and Tenth Amendment –
closely considers an concise but illuminating Oct. 21 amicus brief by
Georgetown law professor Martin Lederman. A former deputy assistant attorney
general in the Department of Justice’s Office of Legal Counsel, Lederman argues
that Trump officials misinterpreted "regular forces" as federal law
enforcement agencies such as the FBI or Immigration and Custom Enforcement
agents. In fact, he says, history of the law going back to 1903 proves the term
"regular forces" in the statute clearly refers to the active-duty U.S.
military such as the Army, Navy and Air Force. In short, under constitutional
or congressional restraints, the president would be obligated to deploy regular
military forces to scenes of supposed civic unrest before resorting to
deploying the state militias that over time have evolved into the National
Guard. "It is difficult to imagine that Congress intended to afford the
president the ability to use the National Guard for law-execution purposes in
situations where he is 'unable' to deploy the regular forces to do so only in
the sense that Congress has denied the president the authority to make such use
of the regular military," Lederman argues compellingly. "As far as
amicus is aware, there is no basis for concluding that Congress intended such a
counterintuitive result."
Lederman argues that his focusing on the term “regular
forces” as well understood by jurists, presidents and lawmakers for decades (but
apparently not by President Trump or his solicitor general) “does not mean to
suggest that the president has legal authority to direct regular military
forces to execute federal laws in Illinois. Whether or not the president may do
so is anything but certain, particularly in light of the Posse Comitatus Act,
18 U.S.C. § 1385, which prohibits anyone from willfully using any part of the
Army, the Navy, the Marine Corps, the Air Force, or the Space Force ‘to execute
the laws,’ ‘except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress.’” And he adds: “Congress designed the militia
calling-forth authority to enable the president to use National Guard only in
the same manner that he may make use of the regular military forces (and only
if and when those regular forces are unable to ensure sufficient execution of
federal laws) – not as a backdoor that would invite the militarization of
law-execution in cases where Congress has foreclosed the use of the standing armed
Forces themselves.”
The high court is clearly intrigued by Lederman's argument. In its Oct. 29 request for more briefs, it specifically sought "supplemental letter briefs addressing the following question: whether the term 'regular forces' refers to the regular forces of the United States military" (rather than, say, individual executive-level law-enforcement agencies) and how all of this fits into the present-day controversy. Thus far, the president's team has cobbled together an unwieldy defense, retreating to the arguably misread 1827 opinion Martin v. Mott and the Militia Act of 1795, which, the president's lawyers argue, "authorized the president to call in the militia whenever there is an invasion or even an imminent risk of an invasion with no requirement that 'regular forces' be 'unable' to repel the incursion."
Likely adding to judicial anxieties on high, even from those justices who might ordinarily be disposed to favor the president: Trump's unraveling temperament, his disintegrating grasp of basic facts and a wildly politicized Department of Justice, the latter's prosecutors increasingly caught misinterpreting established law and legal precedent in incredible ways and just making up facts to bolster its cases.
While Trump in his first term regularly rattled his saber and made brief shows of military power without stumbling into all-out war – a mark in his favor, supporters have argued and detractors conceded – he seems in his second term more resolved to assume the military aura he forsook in his youth. The meme of his assuming the guise of Lt. Col. Bill Kilgore, the video of his flying a fighter jet and humiliating citizens beneath him, his claims of insurrection by such citizens, many of them exercising their First Amendment rights, suggests he seeks glory as a strong leader by crossing certain lines of conduct and constitutionality in harassing, intimidating and suppressing his own people. The danger is highlighted by yet another amicus brief in Trump v. Illinois filed by Steady State, a non-profit advocacy organization of more than 340 former senior U.S. government officials who served Republican and Democratic administrations in all three branches of government as senior Department of Defense officials, ambassadors, foreign service officers, intelligence officers, policy advisors, oversight officials, congressional staffers and prosecutors.
“The authoritarian risks America now
faces appear exponentially greater than just two months ago,” the brief argues,
referring to an earlier brief when Trump dispatched National Guard personnel
and active-duty Marines to Los Angeles. “While the instant case involves only
Chicago, this court cannot fairly ignore the far-reaching consequences of this
application’s breathtaking demand that presidential deployments of the National
Guard, even for domestic purposes, all be declared ‘nonjusticiable.’ Taken
together, recent events raise red flags and reveal ominous challenges our
society will face if the various deployments commence, possibly even
permanently if they are declared unreviewable, into cities and states for
domestic purposes. The instant situation, especially when viewed in context,
thus raises far larger issues than simply ‘preventing another Kent State.’”
“Laws restricting such military deployments and presidents’
regard for tradition helped maintain that boundary,” The Economist, a
long-established, London-based center-right weekly, observed of America in its
Sept. 20 issue. “This suits the armed forces, who train to kill foreign
combatants, not monitor fellow citizens. Mr. Trump, in contrast, seems to have
few reservations about using soldiers for political ends, be it dunking on
Democratic mayors or carrying out his deportation agenda. In the process he is
testing the boundaries of the law, the morale of the armed forces and a
tradition of bipartisan support for that institution, one of the most trusted
in America.” And therein lies the danger. Beyond the growing likelihood of
death a la Kent State, our military risks forsaking
hard-earned goodwill through continued misuse in the president’s harassment and
abuse of not only illegal “aliens” but also legal immigrants and U.S. citizens whom
he disdains. Decades of dedication and sacrifice by our nation’s warriors,
sealed through battlefield courage, resilience, heartbreak and bloodshed in
faraway lands, could easily dissipate if the armed forces today allow
themselves to be arrayed against fellow citizens on the home front in a toxic
political scheme that in more minds by the day qualifies as nothing short of
intimidation, oppression and out-and-out fascism.
A column
extracted from this essay was published in the Waco Tribune-Herald on Nov. 4,
2025.
