Big story last week in Rolling Stone that exposed the genesis of what we now know is the largest single immigration raid in the history of the Department of Homeland Security. Long story short: a Republican congressional candidate and her union-worker helper called ICE on the Hyundai Metaplant outside of Savannah, GA. If you appreciate my reporting on this story — which you won’t find anywhere else — please pay for it.
The Trump administration violated two landmark laws that have been in place for over 200 years that codify the military’s presence in everyday American life — and in doing so has laid the groundwork for military interference in the 2026 mid-term elections.
Donald Trump, the Justice Department, Homeland Security and the military will face no concrete consequences for violating the Posse Comitatus Act and the Alien Enemies Act, as determined by two federal courts last week. In fact, Trump and his backers throughout the federal government, federal law enforcement, and the National Guard and the military, have signaled they’ll continue to violate laws created to prevent the executive branch from establishing martial law, or otherwise using men with guns to enforce their policies and protect their rule.
That includes using the military to “impact” elections, as one of the judge’s who handed down last week’s rulings wrote.
If it weren’t for the typical firehouse of news and scandal that has become a hallmark of Trump presidencies, the decisions last week from four federal judges that the president violated both the Posse Comitatus Act and the Alien Enemies Act would be massive, impeachment-level developments. Instead, the judges’ decisions landed like a feather in a nation that is increasingly hurtling toward open authoritarianism even as daily life continues relatively normally.
In the days following the decisions — which came from Judge Charles Breyer in the Northern District of California and a three-judge panel in the Fifth Circuit Court of Appeals — the Trump administration oversaw a military execution in the south Caribbean, while the president himself has continued to threaten Democratic cities with military occupation and infiltration from the federal immigration agencies that have effectively become Trump’s personal law enforcement forces.
While all of this is obviously very troubling, the National Guard presence in Washington DC — complete with scenes of Guard members picking up trash and mostly just standing around — belies the seriousness of the precedent that the White House is setting.
The grave consequences of accepting Trump’s military and law enforcement occupations of Democratic cities as normal was alluded to in Breyer’s decision, which laid out some of the scenarios with which Trump could use the military toward anti-democratic ends. Those scenarios are made more feasible thanks to a June decision from the Ninth Circuit, which determined that Trump can deploy the National Guard if “his ability to execute federal law has been ‘significantly impeded.’”
Breyer compares the legal threshold granted by the Ninth Circuit givingTrump wide leeway to deploy the National Guard or the military to “the stricter statutory requirement that he be ‘unable with the regular forces to execute the laws’” in order to send in the troops, as Trump is so fond of doing.
Breyer then lays out several theoretical instances in which, under this broad interpretation of executive power over domestic military deployment by the Ninth Circuit, Trump could use the military. One scenario is simply to halt elections.
"The President, relying upon anecdotes from state election officials that voting machines are glitching, or that fraud exists, could claim that he is unable to execute the election laws."
In fact, we are already seeing this argument being laid out by the Trump administration. Through the Justice Department’s pressure on states for access to sweeping and detailed voter data, in addition to Trump’s executive orders on election rules, plus his statements about completely doing away with mail-in ballots and voting machines, the White House is preparing for a takeover of elections.
One way Trump could do this is by claiming some sort of national emergency that would allow him to employ the Ninth Circuit’s interpretation of domestic use of the military.
“For instance, the Ninth Circuit’s test would likely enable a President to use federal law enforcement agents to stoke tensions and then use any resistance as justification to call forth the National Guard,” Breyer wrote. “As long as the President actually believed that the resistance significantly impeded his ability to execute federal law, it is hard to see how a court could find that he acted in bad faith, especially under the Ninth Circuit’s deferential standard of review.”
In other words, Trump can say crime is really bad in a Democratic city — or that election officials in a blue state are corrupt and elections are rigged — and send in the National Guard to get the situation under control.
“Could the President, for instance, assert that he is unable to enforce obscure tax or drug laws and then use the federalized National Guard to execute the election laws?”
Yes and yes. This is where we’re headed.
On the same day of Breyer’s decision, the Fifth Circuit determined that the Trump administration “improperly invoked” the Alien Enemies Act (AEA) by claiming that the presence of Tren de Aragua gang members inside the United States amounted to an “invasion.”
Using this tortured legal rationale, the Trump administration then renditioned undocumented immigrants to the notorious CECOT prison in El Salvador and elsewhere.
The same day that the Trump administration was deemed guilty of violating the AEA, it announced that it had blown a boat to smithereens in the waters of the south Caribbean. The boat contained 11 people — either drug runners or migrants trying to make it to the United States, depending on who you believe.
Now, military assets are gathering off the Venezuelan coast ostensibly to take out drug cartels, meaning Trump is fighting illegal wars both at home and abroad.
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It has become fashionable in recent years to compare current events in the United States to those in pre-war Germany — and for good reason. This isn’t because it’s simply easy or lazy on the part of writers, historians, journalists and others, but because it’s so applicable to what we’re currently witnessing.
William Shirer’s doorstop of a book, the Rise and Fall of the Third Reich, provides, in excruciating detail, the tale of the tape of how Adolf Hitler consolidated absolute power in an otherwise democratic society. The first third of Shirer’s book shows how a nation can vote itself into authoritarianism, dictatorship, and far worse.
Fear and violence played a major role in that consolidation of power. Germans of all political, religious and socioeconomic stripes thought they could appease Hitler and his Nationalist Socialists through compromise or cooperation. One after another, each of these groups was crushed by the Nazi party as it ruthlessly continued upon its authoritarian path.
Some of our friends and neighbors on the American right — be they pocketbook Republicans, Reagan conservatives, Bush-ian neo-conservatives or whatever other non-authoritarian factions remain of the GOP — think these comparisons to Nazi-era are ridiculous.
What these Americans fail to recognize is that the Republican Party as a non-authoritarian institution fails to exist. From the top down, anyone who calls themselves a Republican is either fully supportive of the party’s anti-democratic efforts toward something like total authority or competitive authoritarianism, or they falsely believe that all of this is overblown.
Either way, like the Germans who thought the same, they’ll get run over by the authoritarian rumble just the same.
The best way to do this is to first convince your party that there is an existential threat that must be eliminated, and only you and your people can do it. Then you have to actually start eliminating the threat — or at least making it look like you are.
The deployment of the National Guard and robust Homeland Security forces to Los Angeles in June was called Operation Excalibur. (Breyer alludes to the fact that this is probably no coincidence, writing that “Excalibur is, of course, a reference to the legendary sword of King Arthur, which symbolizes his divine sovereignty as king.”)
The goal of Operation Excalibur was “to demonstrate, through a show of presence, the capacity and freedom of maneuver of federal law enforcement within the Los Angeles Joint Operations Area,” according to Breyer.
In other words: we can do whatever we want, whenever we want, to you, and there’s nothing you can do to stop us.
Further, anyone who does try to stop Trump’s forceful incursions into the territories of his political enemies — either through protest or legal argument — will be accused of crime and disloyalty.
When National Guard Major General Sherman told DHS officials that his troops were prevented from performing certain law enforcement tasks by the Posse Comitatus Act, they began “questioning Sherman’s loyalty to the country,” according to Breyer.
The questioning of Sherman’s “loyalty” to the United States came from Gregory Bovino, who as DHS chief for the Los Angeles region has emerged as a steadfast authoritarian voice. Bovino was the DHS face of the immigration raid carried out last month at a fundraising event held by California Gov. Gavin Newsom.
Bovino’s comment “is relevant because Chief Bovino’s accusations of disloyalty go to the state of mind of decision makers who are tasked with ensuring that the Posse Comitatus Act is followed,” Breyer wrote.
Again, in other words, they don’t care about following the laws that prevent military incursion into everyday American life — one of the very things that prompted the founders to declare independence from England.
Among the reasons listed in the Declaration of Independence for our separation from Great Britain — many of which could easily apply to Trump — is the issue of troops in our lives.
“He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”
All of this comes down to elections — the only thing preventing us from Trump and Republicans obtaining absolute rule. By succeeding in getting the courts to agree with the White House on domestic use of the military, we’re getting closer and closer to free and fair elections being a thing of the past, according to Richard Bernstein, a former clerk for Supreme Court Justice Antonin Scalia and a charter member of the Rule of Law Society.
If courts continue, as the Ninth Circuit did in June, to accept the Trump administration’s arguments for domestic use of the military, “ […] such a decision would neuter the federal criminal prohibitions on the use of the military, including National Guard units in federal service, to interfere with elections,” Bernstein wrote last week. “These arguments are thus a dagger pointed at elections — the heart of our Republic.”
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Here are some other examples of our growing acceptance of martial law.
The Trump administration is using drones to monitor protests and releasing the footage — with no apparent relation to any crime being committed.
Deportation training is now the sole priority for federal law enforcement, meaning that the occupation of majority-minority American cities will grow. Even without sending in the National Guard, Americans in large cities will become more and more accustomed to the sight of Trump’s masked agents on the streets.
A small company with no experience in large projects won a bid to build a detention camp in the Texas desert, part of rapidly increasing detention capacity for immigrants. This is an example of powerful and growing incentives for people, companies and communities to participate in the enforcement of Trump’s authoritarian policies on immigration and other issues.
Federal law enforcement continues aggressive behavior towards the press, furthering an attitude of lack of accountability to the public and loyalty to the president alone.
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