Protests in LA.

Donald Trump federalized California’s National Guard and has called in Marines to police the streets of Los Angeles where protests over ICE’s immigration crackdown have erupted in different parts of the city. This is no longer a drill.

This is happening.Years ago I was part of a reporting team that uncovered a procedural change to the U.S. Code that essentially gave the President of the United States unlimited authority to send the military into the streets. The year was 2013 and the President was Obama. It was one of the biggest stories I worked on and as a result of our reporting…absolutely nothing changed. In fact, it’s only gotten worse since that time.

Our contention was that this unilateral procedural update upended 130 years of precedent rooted in post-Civil War Reconstruction legislation. In doing so it put a tremendous amount of faith in the office of the President to wield authority with the utmost care. It was generally believed that Barack Obama was measured and steady, which we can debate in practice. But the real question was, what happens if we elect a madman to the highest office in the land and he’s given direct access and authority to deploy the military on the streets of U.S. cities? We spoke to Congresspeople, the spokesperson for the Pentagon and others who basically said, ‘never gonna happen.’

Fast forward to the streets of Los Angeles in 2025. In almost any scenario you can imagine, Donald Trump can send troops into the streets of any city, any town, anywhere in the United States without congressional authorization or an appeal to the courts. Trump didn’t manifest these rules on his own, they were handed to him by two prior administrations. Both Democratic.

Posse Comitatus ended under Obama, but it was Bill Clinton who loosened the cap, which will make more sense in a moment but let’s talk about what it is and why it existed as the law of the land for so long.

Defining Presidential Authority

There are three main concepts that we should understand before we clarify what’s happening on the ground in Los Angeles right now. Posse Comitatus, Martial Law and Military Mobilization outside of the National Guard. Underlying all legality in these instances is the Insurrection Act, which has itself come under scrutiny because reports from the White House have emerged that Trump is evaluating whether he can use it as a pretense for stopping the flow of immigrants into the United States.

The Insurrection Act has been used about 30 times in American history, largely to quell civil unrest. It was last invoked in 1992, when President George H.W. Bush sent Army and Marine troops to Los Angeles to help quell the violence following the acquittal of the police officers who beat Rodney King. It has never been used for immigration enforcement. But it’s the standards under Posse Comitatus that are the focus of what’s happening in LA.

The Posse Comitatus Act of 1878 was signed into law by President Rutherford B. Hayes to prohibit the use of the Army, Navy, Marine Corps, and eventually the Air Force and Space Force to execute domestic laws unless expressly authorized by the Constitution or an act of Congress. Importantly, the law does not apply to the Coast Guard or to the National Guard when operating under state authority.

The reason Posse Comitatus is usually mentioned in conjunction with the Insurrection Act is that the Insurrection Act is an explicit exception to Posse Comitatus, which gives the President the authority to call on the military during an emergency to curb unrest or rebellion within the U.S.

The takeaway here is that the U.S. military is not supposed to be considered part of the President’s arsenal to manage domestic disturbances or even natural disasters unless such an action is done in coordination with a state’s governor and with the consent of Congress.

It’s important to understand who has the authority to deploy the National Guard. Typically, the governor of a state is the one who activates the National Guard. In certain circumstances, however, a governor can coordinate with the President to federalize the Guard, as was the case with the LA riots in 1992.

In the current instance it was President Trump—not Governor Gavin Newsom—who called in and deployed the California National Guard to Los Angeles this past weekend. But Trump federalized the state’s National Guard over the objections of Governor Newsom, using his authority under federal law to respond to protests against immigration enforcement actions. It’s shaky ground, which is why California has appealed to the courts.

Governor Newsom publicly criticized the move as “purposefully inflammatory” and stated that the federal government was “taking over the California National Guard and deploying 2,000 soldiers in Los Angeles” without his request or approval. Newsom further urged Californians to remain peaceful and avoid giving the federal government a pretext for further escalation, but he did not request or authorize the Guard’s deployment.

This action marks a rare instance in modern U.S. history where a president has federalized a state’s National Guard without the governor’s consent, the last notable example being President Lyndon B. Johnson’s deployment of troops to Alabama in 1965.

We should be clear that this is not a declaration of Martial Law as some people in the media are lazily calling it. The term “martial law” is often used loosely to describe any military presence in civilian affairs, but legally, it refers to the replacement of civilian authority with military rule—a much more extreme and rare measure. Trump’s deployment of the National Guard was a federalization under Title 10, not a suspension of civil government or rights. If we were truly under Martial Law then the entirety of the Constitution would be void for an unspecified period of time with the military in charge of national affairs and presumably the President, in the capacity of Commander in Chief, as an absolute monarch of sorts. That’s not this. Though you know Trump would love nothing more.

But this introduces the concept of military mobilization and this is where the story gets interesting and scary.

On Saturday, June 10th, Secretary of Defense and everyone’s favorite beer guzzling backyard barbeque dad and serial Signal group chat leaker, Pete Hegseth, tweeted out the following message:

“The violent mob assaults on ICE and Federal Law Enforcement are designed to prevent the removal of Criminal Illegal Aliens from our soil; a dangerous invasion facilitated by criminal cartels (aka Foreign Terrorist Organizations) and a huge NATIONAL SECURITY RISK. Under President Trump, violence & destruction against federal agents & federal facilities will not be tolerated. It’s COMMON SENSE. The Department of Defense is mobilizing the National Guard IMMEDIATELY to support federal law enforcement in Los Angeles. And, if violence continues, active duty Marines at Camp Pendleton will also be mobilized—they are on high alert.”

There’s a few things to unpack here. The first is that he’s using the cover of illegal immigration as an act of terrorism, which is one of the gray areas that the Trump team is forcing the courts to evaluate. This is an incredibly fragile claim that potentially undermines even the Insurrection Act, which would provide the executive broad authority. Making the connection between the act of illegal immigration and the protests surrounding how ICE is handling deportations is a stretch to begin with. But it was his last sentence that raised eyebrows and should be evaluated.

There’s using the National Guard to quell domestic disturbances, which has precedent, and then there’s the idea that the Marines can get involved. No one believes at this moment that the President or Hegseth have the authority to deploy a branch of the military on U.S. soil outside of the National Guard. But here’s where we need to look at the timeline of DoD authorizations.

Timeline to Total Authority

The effective end of Posse Comitatus began in 1994 under Bill Clinton on the heels of the Los Angeles riots in ‘92 when Bush one was in office. But it was expanded in 2013 under Barack Obama. The pretense for the erosion in 1994 also has roots in Los Angeles.

The 1992 Los Angeles riots erupted on April 29th after a jury acquitted four LAPD officers charged with using excessive force in the videotaped beating of a Black motorist named Rodney King. The verdict sparked outrage, especially in South Central LA, where longstanding tensions between minority communities and the police boiled over. The unrest quickly spread, leading to widespread violence, arson, and assaults across the city.

Over six days, more than 60 people were killed, over 2,000 injured, and more than 12,000 arrested. Property damage was estimated at about $1 billion. The LAPD was initially overwhelmed, prompting California Governor Pete Wilson to deploy the National Guard, and President George H.W. Bush sent in thousands of federal troops and law enforcement officers. The violence subsided after several days, following curfews, a strong military presence, and public pleas for peace.

Now, back to how the Clinton administration changed the calculus regarding domestic disturbances on this scale in the aftermath of the riots. Instead of a new bill being crafted for Congress to consider that would have amended Posse Comitatus, or perhaps re-examined the nature of National Guard deployments in the case of large-scale emergencies, the Clinton Department of Defense relied on a procedural change to the U.S. Code to update the law. So the first real change that widened the scope of National Guard deployments happened in a procedural update to the U.S. Code under DoD Directive 3025.12.

This is an important thing to understand because it’s what leads us to this moment in LA and to how Trump might be able to wield total discretion with the U.S. military assets beyond just the National Guard.

When a bill becomes law, it undergoes a codification process to integrate it into the United States Code. When the code is updated it’s done by the Office of the Law Revision Counsel (OLRC). These changes are usually considered non-substantive because they do not alter the legal meaning of statutes.

At least that’s how it’s supposed to work.

Congressional action becomes necessary when substantive changes are involved or when titles need to be enacted into what’s called positive law. Major policy changes that alter the substance of laws, such as modifying rights, obligations, or penalties, require new legislation, as do situations where procedural updates risk changing a law’s intent. The distinction between positive and non-positive law titles proves crucial in this process: non-positive law titles can be updated procedurally by the OLRC, though courts may still reference original statutes if disputes arise, while positive law titles, once enacted by Congress, make the Code itself the definitive legal authority and allow original statutes to be repealed. So hold that thought for when we get to the Obama-era DoD.

The bottom line of the Clinton DoD 3025.12 modifications is that they represented the initial “loosening of the cap” that would later enable more dramatic expansions of presidential authority.

The most consequential changes occurred in 2013 under President Obama, when the Department of Defense replaced the longstanding Directive 3025.12 with DoD Instruction 3025.21. This seemingly bureaucratic change fundamentally altered the landscape of domestic military deployment authority.

The original Directive 3025.12 maintained strict limitations on military involvement in civil disturbances. It required explicit presidential authorization for deployment except in the most dire emergencies, and emphasized that such interventions should only occur when local authorities were genuinely unable to maintain order. 3025.21 dramatically expanded this framework under the umbrella of “Defense Support of Civilian Law Enforcement Agencies” (DSCLEA).

The new instruction broadened the scope to cover all DSCLEA activities, including civil disturbances, counter-drug operations, and disaster response.

The 2013 changes also introduced crucial modifications to civil disturbance protocols. This is where Hegseth is on terra firma. The instruction created new emergency authority provisions that allowed local military commanders to act without prior approval in situations deemed to involve “imminent loss of life.” This provision effectively created a significant loophole in the traditional requirement for explicit presidential authorization. This created a gray area regarding chain of command, timing of decisions and instances in which local military leaders could act without prior authorization from the federal or state governments.

During the required public comment period, the DoD received only two major comments, both of which proved remarkably prescient. The first commenter urged the Pentagon to clarify what constituted “civil disturbances” and argued that such important changes were too significant for administrative rulemaking—they should be presented to Congress for proper legislative oversight. The second comment sought greater clarity regarding the distinction between state and federal deployments of the National Guard, highlighting potential confusion that would later become reality.

The Pentagon dismissed both comments with perfunctory “no action required” statements, proceeding with the changes despite these warnings.

Handing the Keys to the “Fascist in Chief”

The final pieces of this transformation were put in place during the first Trump administration through updates to related directives, most notably DoD Directive 3025.18, which was updated in 2018. These changes introduced “immediate response authority,” allowing local military commanders to act swiftly in emergencies without higher approval—a provision that clarified certain gray areas and essentially eliminated the traditional chain of command requirements for domestic military deployment.

The 2018 updates also formalized the concept of “dual-status commanders” who could simultaneously lead both federal forces and National Guard units during crises. This innovation effectively solved the coordination problem identified in one of the 2010 public comments.

It should be stressed that the current situation doesn’t reflect even the sentiment or perceived authority given to military commanders. But it’s enough for the federal government to believe it has the right to not only federalize any state’s National Guard but to deploy any branch of the military. The problem, of course, is that it will be challenged, presumably leaving the Supreme Court as the arbiter of the altered provisions to the U.S. Code.

The cumulative effect of these changes has been to create a theoretical framework where presidents possess virtually unlimited authority to deploy military forces within the United States.

This specific deployment of California National Guard troops in LA illustrates how these authorities now function in practice. President Trump’s invocation of both Title 10 and arguments about “rebellion against U.S. authority” allowed him to override Newsom’s objections and deploy federal forces for immigration enforcement—a use that would have been unthinkable under the original Posse Comitatus framework.

What emerged from this three-decade evolution is a system that has effectively ended a 130-Year Precedent of the Posse Comitatus Act’s protection against domestic military deployment. The irony is that this transformation occurred not through dramatic legislative battles or constitutional crises, but through a series of seemingly routine administrative updates spread across multiple administrations.

De Facto Nullification of Posse Comitatus

Civil liberties journalists such as Chris Hedges have been talking about the de facto nullification of Posse Comitatus for years given the ultra militarization of our domestic law enforcement agencies. Beginning under the Reagan administration, the federal government has been selling or granting military grade equipment to local police and even creating incentives and training for them to continue taking it off the hands of the military. That’s why it’s pretty hard to distinguish between tactical police agencies and the actual military, so Hedges and others have been asking what the hell the difference is if the police are just as heavily armed as our military.

The biggest takeaway that one needs to know is that the faith placed in presidential restraint is wholly insufficient. Trump can override Newsom all day, every day. He can send troops to the border and even call up branches of the military that have been barred from intervening in domestic affairs, unless otherwise specified by Congress under the most extreme circumstances. And it leaves the conservative majority Supreme Court and its radical ideology as the sole arbiter in any dispute that arises.

It goes back to the original question our team raised when we asked the Pentagon and members of Congress what would happen if we elected a madman to run the country given all the power that was unilaterally given to the President through a few penstrokes in the U.S. Code?

We’ve abandoned a core principle that governed American civil-military relations for over a century. Now we have federal troops walking the streets of American cities, deployed over the objections of state authorities for purposes far removed from traditional concepts of insurrection or rebellion. As crazy as it sounds given all that Trump has put us through, this might prove to be the biggest test of our principles and whether there are limits to presidential power.

Here endeth the lesson.

Image Source

• U.S. Northern Command, Public domain, via Wikimedia Commons. Changes were made.