As a young National Guard officer, my colleagues and I discussed the Posse Comitatus Act often. We always knew that as Guardsmen. we would be called up for national disasters. But, we all knew there were limits to out authority. We knew we could not perform law enforcement functions except in specific circumstances, such as a rebellion. Yet, the Trump administration wants to disregard some of those limits. In a very critical decision, Judge Charles Breyer finds that the Trump administration openly and directly disregarded the limits of the Posse Comitatus Act. Judge Breyer even states flatly that Pres. Trump is trying to create a national police force with himself as its chief of police. Opinion, p. 2. It is very rare that Federal judges draw such stark conclusions. But, there is evidence for the Judge’s conclusion.
After finding that the plaintiffs have standing for this suit, the court gets to the meat of the matter. It finds that the Dept of Defense, from the highest levels, approved using the Guard in ways that directly contradicted the provisions of the act.
No Law Enforcement Means no Law Enforcement
The act provides that except as provided “expressly” in the Constitution or an act of Congress, no part of the U.S. military may be used to enforce laws. 10 U.S.C. §1385. The court finds that the Constitution gave the bulk of the power over the military to Congress. Congress passes the laws. The President is then required to enforce them. During Reconstruction, U.S. soldiers were in fact used to enforce voting rights legislation in the South. In response to that use, Congress passed the Posse Comitatus Act (Latin for “can accompany”) in 1878. Congress did not particularly object to that usage during Reconstruction, but it realized that it should be limited.
The court first dispenses with DOJ’s very unique contention based on 10 U.S.C. §12406(3) – that the President can do with federalized Guard troops whatever he cannot do with regular military forces. Op., at 26. The court notes that even the Department of Defense’s own publication on the Posse Comitatus Act does not make such a claim. No other entity has made such a claim, says the Judge. Indeed, the reasoning for such a claim does not withstand scrutiny.
Faithfully Execute the Laws
The Defendants claim the “take care” clause of the Constitution – that the President take care to faithfully execute the laws of the United States – supports its argument. But, adds the Judge, that is non-sensical. If the President is to take care to enforce the laws faithfully, he must then honor the proscriptions of the Posse Comitatus Act.
But, the most difficult evidence for the Defendants is the training it provided to the newly activated Guardsmen/women. The commanders of the what became Task Force 51 provided two weeks of training to the Guard forces and the Marines. Part of that training included explaining the limits of the Posse Comitatus Act. The brochure produced by DOD itself, probably a long-standing brochure, specifically listed these tasks as forbidden by the Posse Comitatus Act:
- Security patrols
- Traffic control
- Crowd control
- Riot control
This was an actual training slide used in that two week training. Yet, verbally, those soldiers and Marines were told they could in fact conduct those tasks. This instruction “came all the way from the top of Department of Defense.” DOJ objected to this testimony, because it violated attorney-client privilege. That means it is surely based on legal advice by sone attorney somewhere. But, the Judge noted rightly that using that testimony at trial waived the privilege. (That suggests to that DOJ tried to use this testimony in an “offensive” way – not to defend itself, but to score some point). Op., p. 7-8.
And, in fact, the Guard did conduct those very missions in various incidents. The Judge did not focus on one or two arrests or detentions made by the Guard. He apparently saw those few arrests as de minimis. But, he noted the systemic reliance on using the Guard in those four ways in violation of the act.
MacArthur Park
Once incident in particular caused the Judge concern. Department of Homeland Security planned to conduct a show of force type operation in MacArthur Park. Initially, DHS wanted to have the Guardsmen in the midst of the park – a use specifically approved by Secy. Hegseth. The military Commander, Maj-Gen. Sherman objected to placing them in the middle of the park while ICE agents swept the park. Chief Bovino of DHS then accused Maj-Gen. Sherman of lacking loyalty to his country. The Judge noted this incident in a footnote, finding that it helped show the state of mind of the Defendants.The Judge saw this entire show of force as a political theater, and as an abuse off the Posse Comitatus Act. Op. p. 12.
The court noted that the Guard could indeed be used to protect federal buildings and property. But, that sort of task was not law enforcement. Protecting federal property is not implicated by the Posse Comitatus Act, at all. It is entirely the province of the courts to determine what the law is. That has been the state of law in the United States since the Marbury v. Madison decision in 1803. There is a well-developed body of law interpreting the Posse Comitatus Act. No case supports the Defendants’ broad interpretation.
(It is probably safe to say that when any judge finds it necessary to invoke the ancient precedent of Marbury v. Madison, that the Defendant has lodged some specious arguments).
As Pres. Andrew Jackson himself said during the Nullification Controversy:
“[U]ntil some act of force is committed or there is some assemblage of an armed force … to resist the execution of the laws of the United States, the Executive of the United States has no legal [and] constitutional power to order the militia into the field to suppress it.”
The Judge then enjoined the use of the Guard to perform those four above mentioned tasks. And, us regular people are left to wonder how any serious lawyer could envision otherwise. See the court decision here in Newsom v. Trump, No. 25-CV-04870 (N.D. Calif. Sept. 2, 2025).