Trump Sent in Troops. Eisenhower Did Too. But Don’t Pretend It’s the Same.
The real question isn’t if military force is legal, it’s why it’s used.
I just read an article in The Free Press by Jed Rubenfeld called “Trump, the Troops, and the Law.” It caught my attention because the premise of the piece discusses something that most people aren’t discussing in depth enough. What happens when presidents deploy the military on American soil, and whether it’s legal, justified, or "dangerous to democracy." I want to get away from the hatred of Trump, what a protest is, and what is a peaceful one, or one where people are having fun watching cars burn or not. I want to write about the procedural details and the limiting principles of government policy at any level, as well as how matters are to be worked out among the city, state, and federal levels.
The piece written by Rubenfeld focused on recent events in Los Angeles, where chaos broke out, and the local police admitted they were overwhelmed. There were reports of people throwing cinder blocks, using hammers to break concrete, and tossing unknown liquids at officers. It was not a peaceful protest. It was something else entirely. What happened there was violent and destructive, and the LAPD said they didn’t have it under control.
So what happens when local law enforcement can’t keep up? That’s where the real question comes in: Who decides when it’s time to bring in the National Guard or federal troops?
Rubenfeld brought up a key law: the Posse Comitatus Act, passed after the Civil War. He said it was “rammed through Congress” by white supremacist Southern Democrats who were angry that the U.S. military was being used to protect newly freed Black citizens, especially their right to vote. The law basically limits the federal government’s ability to use the military for domestic law enforcement. But Rubenfeld’s larger point was that deploying troops doesn’t always threaten democracy. In some cases, it’s necessary and legal.
That got me thinking. When was it necessary?
He pointed out that it wasn’t a “threat to democracy” when President Eisenhower sent the 101st Airborne Division to Little Rock in 1957 to protect nine Black students trying to attend a formerly all-white school. The Arkansas governor had used his state’s National Guard to block those students. Eisenhower stepped in to enforce the Brown v. Board of Education decision. The law was on his side.
It wasn’t a threat to democracy when JFK sent federal troops to Ole Miss in 1962 to protect James Meredith, the first Black student trying to enroll there. Again, there was a court order being defied, and the president acted to uphold federal law.
Same with LBJ in 1965. He sent troops to Alabama to protect civil rights marchers, Martin Luther King Jr. included, after they were attacked by state troopers and racist mobs. In all three cases, the states had failed to protect their citizens, federal court orders were being ignored, and the threat on the ground was real and violent.
Eisenhower and Kennedy were responding to explicit defiance of federal court orders. That meets the threshold under federal law for intervention. In L.A., there was chaos, but no legal impasse that required federal intervention. The president can federalize the Guard without consent, but that’s rare, controversial, and usually in the face of a serious rebellion or obstruction of federal law. That wasn’t the case in L.A., and no one credibly argued otherwise from what I read.
There’s no federal court order being blocked. No civil rights violations being addressed. No request for help from the state or local government. Trump just wanted to flex his power, post some tough-guy nonsense on social media, and “send in the troops.” But there’s a difference between restoring order within a legal framework and launching a domestic show of force with no coordination, no consent, and no clear legal basis. That’s why Judge Charles Breyer, a federal judge in California (and yes, the brother of former Supreme Court Justice Stephen Breyer), ruled Trump’s deployment illegal.
It’s not that using the military inside the U.S. is always wrong. It’s that there’s a process and a reason for doing so. When a president follows the law, works with governors and mayors, and uses federal power to uphold constitutional rights, that’s one thing. But when a president acts like a wanna-be dictator, uses the military as a political prop, and threatens to have “troops everywhere” just because he feels like it, that’s when things go off the rails.
Rubenfeld makes an important point: military force becomes a threat to a free country when it tramples civil liberties, breaks up peaceful assemblies, or scares people into silence. It becomes theater, meant to intimidate, not to protect. Trump thrives in that chaos. But just because he posts it on his stupid platform doesn’t make it serious policy. It’s bluster. It’s unserious. But it still has consequences.
What is serious is the line between local, state, and federal authority. And how dangerous it is when those lines are ignored. The moment we start playing fast and loose with the rules, or let presidents call in troops because they’re feeling tough that day, we invite the very chaos we claim to be preventing.
What happened in Little Rock, Ole Miss, and Selma was about enforcing constitutional rights in the face of state resistance. What happened in Los Angeles was about ego, optics, and control. When we let elected officals bend the rules because they 'mean well,' trying to protext people from themselves or because they want to seem strong, we normalize emergency powers as everyday tools. That’s how democracies hollow out, not overnight, but piece by piece.
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The most vivid (and totally researchable) day-to-day indications of a functioning Tenth Amendment, across a labyrinthine and vast network of tens of thousands of agencies & jurisdictions all over the USA(also known as federalism, and well worth an intensive refresher-course, fellow Americans) are the operabilities of interagency command, coordination, cooperation & communication.
Whatever you want to label what went on to happen in LA (and we vigorously disagree on this), how it started was with a large-scale paramilitary operation which was all but unidentifiable from the street, within a municipality called Paramount in Los Angeles County, one of dozens of cities outside LA proper where both the LAPD and Sheriff's office share various duties on a routine basis. When these local agencies had been called by locals to respond to such a large-scale incursion by multiple federal agencies in full battle gear (and hardly an insignia among them saying who and what they were), neither of them, nor the Mayor's office, nor the Los Angeles DA's office, nor anyone else not on Kristi Noem's speed-dial, had been given any notice whatsoever from the feds, from the same agencies local law enforcement must coordinate activities with on a regular basis, on anything from managing wildfires to conducting manhunts to carrying out REAL task-forced law-enforcement ops such as drug raids, etc
For all this talk about the First Amendment being both the stakes and the grounds for the CA-vs-DC standoff which ensued, this is not the overall most crucial constitutional dispute in play.
The Tenth is, because without interagency cooperation in every jurisdiction from Key West to Nome, San Diego to Bangor, all possibility of the mechanism we have known all our lives across the entire country, (interagency relations actually working absent political disputes between agencies preventing any jointness of action among them), which we are pleased to call Law and Order, can no longer function on a 24/7 basis as it has been doing since before living memory.
In its place, can come all manner of countermeasures against what amounts to coerced jurisdictional autonomy, meaning every town, every county, every State is left not knowing whether it can count on the feds, or the police department just over a line where The Other Side has the power and gives the orders; and watch the paranoia, siege mindsets, and increasingly zero-tolerance approaches at the local level to anything police do; then comes the concertina wire, the checkpoints, the sealed radio codes and altered dispatch policies, and anything else a community or region feeling left to its own devices by DC can come up with, to secure their own perimeter, and concern themselves further with absolutely nothing outside of it.
Times tens of thousands of such locales....
If this administration wants to fracture the most successful union of political sovereignties in known history (why we call them 'United" States in the first place), all it has to do is keeping carrying out local raids and task-force ops without giving the police a heads-up first, keep recruiting riot actors nearby to stage brief & uncontagious incidents of entirely apolitical mayhem for the cameras (and the Reichstag-fire crackdown-fever these foment in some circles), keep hurling slurs such as 'tarred and feathered' at local executive authority trying to exercise its lawful powers IN SPITE of the feds instead of alongside them, and the USA becomes a medieval patchwork of gang/warlord districts, separatist enclaves, lawless and trackless expanses full of every kind of banditry imaginable (ever look out the window cruising at 20,000 over Flyover Country?), rural and even more isolated land-baronates run by vigilante fronts wearing police uniforms, etc, etc.
As meanwhile the very topic of what is or is not 'legal immigration' becomes altogether moot, because the only law there is across the fence-line alongside the nearest federal highway, is the law the locals had been left to make up as they go along.
This will not be, history instructs us, any pretty sight.
Even though few remain still living who recall times in America's not-too-distant past, urban and rural alike, when everything I have described here was the routine order of business across much of the land, this does not mean that the USA cannot RETURN to such a condition of general lawlessness nationwide, in the face of this kind of purely political and factional wagering and provocation against the TENTH Amendment. The First is doing just fine.