Today in Fascism

I don’t have much to add here, except to share information and link to the source.  While not at all surprising, this is a distressing turn of events.  He is dancing on a very dangerous line.

I. What Trump Did (and Didn’t) Do

There are a lot of misunderstandings and misinformation out there about what Trump has and hasn’t done, and given that I’ve covered these topics before, it seemed worth a quick explainer on why this move is a big deal—but why it also is not as drastic an escalation (or abuse) as many had feared, at least not yet.

The TL;DR here is that Trump has not (yet) invoked the Insurrection Act, which means that the 2000 additional troops that will soon be brought to bear will not be allowed to engage in ordinary law enforcement activities without violating a different law—the Posse Comitatus Act. All that these troops will be able to do is provide a form of force protection and other logistical support for ICE personnel. Whether that, in turn, leads to further escalation is the bigger issue (and, indeed, may be the very purpose of their deployment). But at least as I’m writing this, we’re not there yet.

II. Why the Memorandum is Still Alarming…

That said, there are still at least three reasons to be deeply concerned about President Trump’s (hasty) actions on Saturday night:

First, there is the obvious concern that, even as they are doing nothing more than “protecting” ICE officers discharging federal functions, these federalized troops will end up using force—in response to real or imagined violence or threats of violence against those officers. In other words, there’s the very real possibility that having federal troops on the ground will only raise the risk of escalating violence—not decrease it.

Second, and related, there is the possibility that that’s a feature, and not a bug—that this is meant as a precursor, with federalizing a modest number of National Guard troops today invoked, some time later, as a justification for more aggressive responses to anti-ICE protests, including, perhaps invocation of the Insurrection Act. In other words, it’s possible that this step is meant to both be and look modest so that, if and when it “fails,” the government can invoke its failure as a basis for a more aggressive domestic deployment of troops. What happens in and around Los Angeles in the next few days will have a lot to say about this.

Third, and perhaps most significantly, as I wrote in April, “domestic use of the military can nevertheless be corrosive—to the morale of the troops involved, all of a sudden, in policing their own; to the relationship between local/state governments and the federal government; and to the broader relationship between the military and civil society.” Even uses of the military for relatively modest purposes can have those corrosive effects—especially where, as here, it seems so transparently in service of the President’s policy agenda, and not necessarily the need to restore law and order on the streets of America’s second largest city.

Even as someone who thinks the federal government has both the constitutional and statutory authority to override local and state governments when it comes to law and order (see, e.g., President Eisenhower sending troops into Little Rock to enforce Brown), it seems to me that there is something deeply pernicious about invoking any of these authorities except in circumstances in which their necessity is a matter of consensus beyond the President’s political supporters. The law may well allow President Trump to do what he did Saturday night. But just because something is legal does not mean that it is wise—for the present or future of our Republic.

A lot depends on what happens next. For now, the key takeaways are that there really isn’t much that these federalized National Guard troops will be able to do—and that this might be the very reason why this is the step the President is taking tonight, rather than something even more aggressive.

THE MEMO.

Steve Vladeck on Federalizing the National GuardPost + Comments (56)