Image by Levi Meir Clancy.
I was talking to a journalist the other day and we were both stumped on what formal legal justification, if any, the demented fascist leader Trump – really Trump’s operatives under the direction of the top fascist strategist Stephen Miller – might be using to act on Herr Donald’s threat to bring federal troops into Chicago.
It seems a bit of a mystery. For better or worse, Trump possesses the legal authority for his deployment of National Guard troops in Washington DC. The president of the United States has formal “home rule” power over the nation’s capital city. There’s no mystery about the authority he has invoked in DC.
But what about all the rest of the big majority-nonwhite and Democratic Party-run cities that Trump and other Republifascists hate and want to bring under military domination, citing their determination to subdue supposedly out-of-control urban crime?
The 1878 Posse Comitatus Act makes it illegal to deploy federal troops on domestic soil for policing purposes, right?
Not quite. The (slaveowners’)1807 Insurrection Act is a “statutory exception” to Posse Comitatus. It empowers the White House to deploy the U.S. military and federalize National Guard units of individual states to suppress “civil disorder,” “insurrection,” and/or “armed rebellion” against the federal government anywhere in the country. The first US president named George Bush invoked the Insurrection Act to suppress the 1992 Rodney King Rebellion in Los Angeles.
Then there’s Section 12406 of Title 10 of the U.S. Code, which permits a US president to call National Guard units into domestic policing under certain circumstances, including “a rebellion against the authority of the federal government.”[1] The Trump team invoked this second “statutory exception” to Posse Comitatus (section 12406) to “justify” sending 4000 members of the California National Guard and even 700 US Marines (the latter under less clear authority) to Los Angeles last June. In doing so, the fascist White House absurdly claimed that strident and unarmed anti-ICE protests in 4 square miles of the 500-square-mile city of Los Angeles constituted a “rebellion against the US government.”
A federal district judge has ruled Trump’s use of military force in Los Angeles illegal, observing that no such rebellion remotely existed, but that judgement has been blocked by a federal appeals court.
But what about Chicago? There’s nothing remotely like an insurrection or a “rebellion against the US government” going on in Chicago. There’s just nothing going on in the great Midwest Metropolis on the scale of the last June’s anti-ICE protests in Los Angeles to give Trump any serious pretext for invoking either the Insurrection Act or Section 12406 of Title 10 to send troops to Chicago.
Perhaps the Trump regime will try to provoke protests they think they can call an anti-(federal) government rebellion to provide a pretext for invading Chicago. Perhaps they will cite Chicago mayor Brandon Johnson’s refusal to dismantle sanctuary city policies that forbid municipal government cooperation with federal immigration enforcement in the wake of fascist US Attorney General Pam Bondi’s warning that US cities and states abandon such policies by August 20 or face federal prosecution. Never mind that: no existing statutes purport to make it illegal for US cities and states to practice non-cooperation with federal immigration authorities; the Tenth Amendment reserves powers not delegated to the federal government to the states; the anticommandeering principle in US constitutional law (rooted in the Tenth Amendment) is supposed to prevent the federal government from convincing states to execute or enforce federal laws or regulations.
In his recent comments menacing Chicago with military occupation, all Trump has cited as the reason for his threat is allegedly rampant crime, despite a declining Chicago crime rate – basically the same as with Washington DC.
The Trump regime appears to be saying that it wants to enlist National Guard units in standard urban domestic policing, without the pretext of rebellion or insurrection, citing no “statutory exception” to Posse Comitatus.
What gives? Some of what Trump and his fascist team may think justifies their threats against Chicago and other cities is probably found in an Executive Order (EO) Trump signed yesterday. The New York Times reports that (among other nefarious things) this EO “direct[s] the Defense Department…to take a larger role in domestic law enforcement, including by ‘quelling civil disturbances,’ as [Trump] threatens to broaden deployments of the National Guard in cities run by his political enemies. The executive order, released by the White House on Monday morning, also formalizes the creation of specially trained National Guard units in the District of Columbia and all 50 states that can be mobilized quickly for ‘ensuring the public safety and order.’” (emphasis added)
Let’s look at the relevant language in the order:
“The Secretary of Defense shall immediately begin ensuring that each State’s Army National Guard and Air National Guard are resourced, trained, organized, and available to assist Federal, State, and local law enforcement in quelling civil disturbances and ensuring the public safety and order whenever the circumstances necessitate, as appropriate under law. In coordination with the respective adjutants general, the Secretary of Defense shall designate an appropriate number of each State’s trained National Guard members to be reasonably available for rapid mobilization for such purposes. In addition, the Secretary of Defense shall ensure the availability of a standing National Guard quick reaction force that shall be resourced, trained, and available for rapid nationwide deployment.”
Notice all the wiggle room in the language: what exactly is a “civil disturbance” that supposedly needs to be “quelled” in the view of a fascist like Trump or Stephen Miller? That could be something as small as an argument of neighbors on a street corner, or perhaps a group of (Black and/or Latino) teenagers “making noise” downtown, no?
“Ensuring public safety” is identical to the explicit role of local police. The Trump fascist regime citing that as a justification for sending in specially trained “quick reaction” military (National Guard) units to American cities and towns ought to send chills down the spines of all concerned with basic civil liberties and everyone who doesn’t want to live in a MILITARIZED POLICE STATE.
Does this EO provide a “statutory exception” to Posse Comitatus? No, not at all, because it’s not a statute. It’s not a law passed by the US Congress and signed by the US president, much less upheld as constitutional by the federal judiciary.
This might seem like a ridiculously obvious thing to point out but here we should all be reminded that fascist executives think THEY ARE THE LAW and aspire to RULE BY EXECUTIVE ORDER.
An online friend recently expressed amazement at the audacity of Trump’s threats against Chicago and New York, saying “how could this be legal?”
News flash: the Trump regime is fascist and fascist regimes see themselves as the law, as in “what we say goes.” The Trump fascist regime is all about replacing previously normative bourgeois-democracy and rule of law with a new form of governance: the rule of arch-revanchist white men driven by a toxic combination of white supremacism, virulent patriarchy, and xenophobic nationalism, deeply contemptuous of polyglot cities and determined to crush all domestic political opposition to one-party rule.
Look at the January 6 putsch attempt and the pardons Trump47 granted on day one to 1500-plus putschists who tried to physically cancel the 2020 presidential election in his name. Look at Trump47’s day one executive order purporting to cancel the explicit constitutional right of birthright citizenship. Look at any number of examples of Trump defying judicial rulings including a recent federal district court’s temporary restraining order that is supposed to ban ICE and Border Patrol thugs from kidnapping people on the basis of their race, language, ethnicity, and place of work.
So come on people, this is fascism. Speaking of which, I just put this up in response to Chicago progressives’ “social media” posts about defending Chicago against Trump’s threatened occupation:
‘Yes to resistance in Chicago, of course, but please broaden the geographic lens beyond just ‘our community’ and join Refuse Fascism in calling for a movement of many millions to bring about the FALL OF THE TRUMP FASCIST REGIME. “Free Chicago”? Sure. But let’s free all of the USA and the world of the existential menace of the Trump regime, just for starters. Now, in the streets and public squares, through a sustained mass popular uprising, not on the bourgeois electoral timetable and under the dead wings of the dismal Weimar Dems.’
Heads up, Chicago: reporters citing unnamed highly placed sources say Chicago will be invaded by the Trump regime on September 2nd. My advice: take that with a grain of salt but don’t write it off. It could well be correct. This regime is moving very quickly and with great audacity to cement its rule.
Endnote
+1. Section 12406 reads as follows:
“Whenever—
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws of the United States; the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.” (Added Pub. L. 103–337, div. A, title XVI, § 1662(f)(1), Oct. 5, 1994, 108 Stat. 2994; amended Pub. L. 109–163, div. A, title X, § 1057(a)(5), Jan. 6, 2006, 119 Stat. 3440.)
The post Chicago On Guard: Trump’s Looming Fascist Invasion appeared first on CounterPunch.org.
This content originally appeared on CounterPunch.org and was authored by Paul Street.