U.S. Troops on U.S. Soil

by Jack R. Johnson 06.2025

Los Angeles, the second largest city in the United States with a population of 3.9 million, is now the center of a legal maelstrom concerning presidential authority, military power and states’ rights.

At issue are the National Guard troops and Marines that are patrolling the streets of LA under Federal control. California Governor Gavin Newsom has sued the Trump administration, arguing that the president's National Guard and Marine deployment, without state consent, exceeded his authority and potentially violated the Posse Comitatus Act. As heard in countless Westerns, the word posse is a shortened form of posse comitatus meaning “power of the county.” It refers to the power of “local officials to grant policing authority to local people to assist in criminal justice activities.” Broadly speaking, the Posse Comitatus Act prohibits U.S. troops from conducting civilian law enforcement on U.S. soil, which Newsom argues might be occurring in LA. In his complaint, Newsom said that "violation of the Posse Comitatus Act is imminent, if not already underway"

The Posse Comitatus Act was originally passed after another significant overreach by President Rutherford B. Hayes back in 1877. Nominally a ‘states rights’ act supported by diehard Southerners opposed to Federal troops being used during Reconstruction, the Posse Comitatus Act gained bipartisan support in 1877 after President Hayes deployed federal troops to end the Great Railroad Strike. This was the country's first major rail strike and the first general strike in the nation's history.  It began on July 14 in Martinsburg, West Virginia, after the Baltimore and Ohio Railroad (B&O) cut wages for the third time in a year in the middle of a depression. By 1877, there were dozens of railroad strikes across the country.

At the same time that labor showed its muscle, the violence it spawned paralyzed the country's commerce and led governors in ten states to mobilize 60,000 militia members and national guard to reopen rail traffic. The strikes and battles between workers and militias lasted for 52 days. They spanned five states and involved over 100,000 workers.  Of those involved, nearly 1,000 people were jailed and about 100 were killed. The high cost of such violence in both fiscal and political terms was not lost on corporate and government leaders. 

Robert Harris of the Chicago, Burlington and Quincy Railroad was quoted as saying: "A reduction of pay to employees may be as expensive to the Co. [company] as an increase of pay." After this overreach, both Republicans and Democrats agreed that the U.S. military should not be used in such situations against U.S. civilians. The Northern states’ businessmen found it inefficient and costly, while the Southern states were happy to see Federal troops barred from policing their Jim Crow communities.

“Despite the ignominious origins of the law itself, the broader principle that the military should not be allowed to interfere in the affairs of civilian government is a core American value,” wrote the Brennan Center for Justice’s Joseph Lunn in 2021.

Curiously, in Federalizing the California National Guard, Trump did not cite the 1807 Insurrection Act (which many in his administration-- like Stephen Miller-- have advocated.) The Insurrection Act explicitly allows the president to deploy military personnel on U.S. soil without the consent of a state. The key question is whether an actual rebellion or insurrection is occurring which is the necessary legal trigger. Invoking the Insurrection Act would allow the administration to expand the National Guard and U.S. Marines’ mission, currently limited to protecting federal buildings and property.

Probably first used during the Whiskey Rebellion in July 1794, President George Washington relied on the military authority of the Militia Act of 1792 (predecessor to the Insurrection Act) when responding to armed farmers protesting the new federal excise tax on whiskey in western Pennsylvania. The various Militia Acts (1792, 1795 and 1807) that followed laid the legal groundwork for the Insurrection Act of 1807, invoked during the Civil War and afterwards, fighting white supremacist gangs like the KKK during Reconstruction. The Insurrection Act was also referenced during labor conflicts in the late 19th and early 20th century, most famously Cleveland’s suppression of the Pullman Railroad strike, and when General MacArthur disbanded the Bonus Army in 1932, violently dispersing military veterans who were camping out in D.C., demanding their bonus pay for fighting in World War I. 

Later in the 20th century, both Presidents Dwight D. Eisenhower and John F. Kennedy invoked the Insurrection Act to enforce court-ordered desegregation. In 1965, Johnson used the act again to federalize the Alabama National Guard after the infamous Selma ‘Bloody Sunday’ riots.

In the past 50 years, only one president, George H.W. Bush, has used the Insurrection Act: in the Virgin Islands in 1989, and later, in the Los Angeles Rodney King riots in 1992. The 28 years since the Los Angeles riots mark the longest period in American history without a domestic deployment of troops under the act.

According to the Brennan Center, “While there are rare circumstances in which such [Insurrection Act] authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse.”

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Back in LA, the Los Angeles Police Department (not exactly a hotbed of liberal dissent) issued a statement supporting Governor Newsom’s position:

 “Today, demonstrations across the City of Los Angeles remained peaceful, and we commend all those who exercised their First Amendment rights responsibly. The Los Angeles Police Department appreciates the cooperation of organizers, participants, and community partners who helped ensure public safety throughout the day.”

California Governor Gavin Newsom issued the following statement as well:

“The federal government is taking over the California National Guard and deploying 2,000 soldiers in Los Angeles — not because there is a shortage of law enforcement, but because they want a spectacle.”  

To decide California’s lawsuit against the administration, Judge Breyer asked for briefings from Governor Newsom and President Trump by noon Monday on whether the Posse Comitatus Act is being violated in Los Angeles. 

In the coming weeks, we’ll see what the courts have to say about President Trump’s Federalized California National Guard and the U.S. Marines patrolling the streets of LA. Their respective interpretations of the Posse Comitatus Act, its reach and its limits, will likely set the course of U.S. history once again.