FAQ: The L.A. Protests, Military Deployment and the Constitution

Last weekend, following protests against immigration enforcement in Los Angeles, President Donald Trump called 2,000 members of the California National Guard into federal service to be deployed into the city. In the days since, 2,000 more guard troops have been federalized, and 700 Marines have also been sent to L.A. 

It is extremely rare for federal troops to be deployed within the United States. The Constitution Project at POGO (TCP) focuses on instances when the federal government uses national security powers to undermine constitutional rights. 

We sat down with TCP’s experts on immigration enforcement, surveillance, and emergency presidential powers to learn what the Constitution has to say about this moment — and what we should all be aware of in the days and weeks to come.

Q: Let’s start with a broad question: Why is this moment so important? 

Katherine Hawkins, senior legal analyst and expert in immigration enforcement:
The protests in Los Angeles are a response to a campaign by the Trump administration — which began soon after inauguration but is only accelerating with time — to disappear and deport immigrants without due process or judicial review.

In late May, influential White House advisor Stephen Miller reportedly called dozens of Immigration and Customs Enforcement (ICE) leaders to a meeting in Washington, D.C., where he berated them for failing to arrest and deport enough people. The Washington Examiner quoted one ICE official as follows: “Stephen Miller wants everybody arrested. ‘Why aren’t you at Home Depot? Why aren’t you at 7-Eleven?’”  

By early June ICE and CBP were at multiple Home Depots in Southern California — an office park across the street from one store became the site of an extended confrontation between protesters and law enforcement, although rumors of a “raid” of the store were not quite accurate.

ICE also began arresting people when they came to their immigration court hearings or scheduled check-ins with the agency. In Los Angeles, reports surfaced that some of the detainees — including a U.S. citizen toddler and a woman with a high-risk pregnancy — were locked overnight in the basement of the federal office building that has become one of the main protest sites. The Washington Post reported that some of the people detained in recent days have already been removed from the country without due process.

Don Bell, policy counsel and expert in surveillance:  
What started as small scale and predominantly peaceful protests against increasingly indiscriminate and authoritarian ICE tactics has escalated dramatically with the federal government choosing repression. 

It did not take long for the administration and local authorities to deploy additional surveillance tools. By Monday, 404 Media was reporting that DHS has deployed Black Hawk helicopters and military aircraft to surveil the protests occurring in Los Angeles, and the L.A. Times was reporting that a Los Angeles Police Department helicopter flew over protesters announcing “I have all of you on camera. I’m going to come to your house.”

As we’ve written, surveillance will likely be a key force to sow fear, which can chill protest and tamp down dissent. Surveillance is especially problematic in the context of protests, because it inherently makes people more fearful of exercising their First Amendment rights. In a moment fraught with escalating authoritarianism and a dangerous abuse of power, the Constitution must stand as it has for nearly 250 years as a bulwark for the people and communities threatened by the actions of their government. 

David Janovsky, acting director of TCP and expert in how and when presidents can use emergency powers: 
The current administration has consistently used the language of war to describe immigration and the language of rebellion to describe protest and dissent. Those terms have real-world consequences, and the decision to call in the military in response to the situation in Los Angeles is one of the most consequential to date.

Federal law prohibits the use of the military to enforce civilian laws in the United States in all but the most extraordinary circumstances. In those cases, the president can draw on “emergency powers.” Specifically, the president may authorize the use of the military domestically when there is an invasion, or an insurrection or rebellion that is so severe that state or local authorities, or federal law enforcement, cannot handle the situation. 

None of those conditions are met in this case. There has been some criminal activity amid the protests in L.A., but that does not constitute a rebellion or insurrection. People are protesting specific government actions, not engaging in an organized campaign to overthrow the federal government.

And, as the state of California has alleged in a lawsuit challenging the government’s actions, the situation was not beyond its ability to control with regular police. The decision to federalize National Guard troops and deploy Marines in this environment is contrary to the law.

Q: What does the Constitution have to say about moments like this? 

Katherine Hawkins: 
The Fifth and Fourteenth Amendments protect the right not to be deprived of life, liberty, or property without due process of law, and the habeas corpus clause protects against illegal government imprisonment. Violations of those rights have been ongoing for months and were the spark for these protests.

The First Amendment protects the rights to protest (to assemble and petition the government), free speech, and a free press. I’ve already seen many videos of authorities using excessive force against protesters who are simply in their way, and journalists doing their jobs. 

The Fourth Amendment protects against unreasonable search and seizure, but its enforcement has not kept pace with modern surveillance technology, and that creates danger for protesters. 

Don Bell:
The Constitution is abundantly clear — people have a right to peacefully assemble and speak in opposition to the government. Journalists have the right to document unfolding events. The overall posture of the administration in this instance continues an authoritarian decision-making pattern of selectively using the power of federal law enforcement when protesters are in opposition to government policy, and being emphatically supportive of others when in support of the administration. 

A majority of Americans feel the administration is wielding too much power and have a growing level of discomfort with it — and calling in the military to deal with protests is a major expansion of that power.  

David Janovsky:
The Tenth Amendment protects the rights of states against federal power. Whether Trump’s order federalizing part of the California National Guard violated that principle is likely to be addressed in California’s lawsuit against the federal government. 

While the Constitution makes the president commander in chief of the armed forces, Congress has the power to regulate the military through statute. Among those statutes is the Posse Comitatus Act, which is what prevents the military from being used for law enforcement in the United States. So far, the president has not invoked any of the powers that could eliminate the constraints of Posse Comitatus — so the permissible mission of the military forces currently in L.A. is very limited and cannot involve law enforcement actions like arresting protesters. 

Finally, even if the military were permitted to perform law enforcement functions, people still have all the same constitutional rights as they would if they were encountering regular police. The Fourth Amendment prevents unlawful searches and seizures; the rights to remain silent, be represented by an attorney, and have a trial are still in place. And the military must respect the First Amendment rights to speech and assembly. 

Q: This is a clear indication of rising authoritarianism. What should the public watch for in the coming weeks? What can we do? 

Katherine Hawkins:  
As a general matter, it’s a good idea to follow the news — but we have to do so critically.  Reports of some protesters damaging property and throwing projectiles are real, as are reports of some police shooting rubber bullets and tear gas. I’ve heard from folks who live in L.A. County the impression that the situation is anywhere comparable to the 1992 riots or the wildfires earlier this year is totally false. 

At the same time, disappearance and incommunicado detention conceal terrible abuses from the public by keeping them out of the news. 

David Janovsky: 
First and foremost, my question is, “How aggressive will our leaders push service members to be?” Just this week, the administration called for violence against protesters. Placing troops who are trained for war in a volatile situation with civilians is dangerous for everyone. The risk of escalation, whether accidental or intentional, is very real. 

Second, Trump has threatened to invoke the Insurrection Act, which would allow the military to perform the law enforcement functions the Posse Comitatus Act currently prohibits. 

There isn’t an insurrection. Invoking those powers would be unjustified — and a major escalation. 

Once the dust settles, this should prompt a reexamination of the current laws around the use of the military domestically and how the National Guard can be federalized. The primary problem today is that the administration is ignoring the law, not that existing law allows for what is happening. 

But we have long raised concerns that Congress has given presidents far too much power to deal with emergencies, while leaving the decision about what counts as an emergency to presidents themselves.

Katherine Hawkins: 
Here are some questions I am asking myself:

• Will the disappearances and deportations without due process continue to accelerate?
• Will the protests spread to more cities in response to people seeing their neighbors being taken away, or peaceful demonstrators being assaulted?
• Will federal authorities continue to escalate in response (for example, by officially invoking the Insurrection Act, or deploying troops to more cities and states)?
• Will members of Congress be able to do meaningful oversight of detention facilities as the law requires, or will they continue to be turned away and even criminally charged for doing their jobs?
• Will Congress provide more resources for repression by passing the reconciliation bill? (It’s very important to ask your representatives to oppose it.)
• Do the courts step in? If they do, does the executive branch follow their orders in good faith?

Don Bell: 
The fact is, the government is using predominantly peaceful protests as a pretext to deploy the military and the vast surveillance capabilities both it and federal law enforcement agencies possess.

Both political parties allowed DHS to build exceptionally powerful surveillance tools, and now Congress may be close to giving DHS billions more dollars with little oversight. Mass surveillance will likely be supercharged. In the coming days, it is likely that there will be more reports of surveillance tools being used to track down protesters, regardless of whether they did anything wrong. 

What can we do? People cannot afford to stay silent. There is enough cowardice and cynicism in Congress, but this transcends politics. Folks must demand that their representatives defend the Constitution, and that the administration follow the Constitution. This is merely the latest attack in a campaign to determine if the Constitution will apply to all in America. The stakes could not be any higher.