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There is no insurrection. Not in Chicago. Not in Portland. Not in Los Angeles. Not in any city in the United States of America.
That is not seriously in question. The only issue is whether the Supreme Court will allow the president to say that there is an insurrection, and then use his own patently false proclamation to justify flooding American cities with soldiers to “fight crime.”
Considering the recent behavior of the Supreme Court’s six conservative justices, the vibes are rancid.
Posse Comitatus
Donald Trump has never understood that the military is not a domestic law enforcement agency. Back in 2013, he tweeted “we need our troops on the streets of Chicago, not in Syria.” Now in his second term, he’s promised over and over again to use the military to “clean up” American cities.
In a deranged rant at the generals on October 1, he called on the military to take on domestic “enemies.” He even suggested that “we should use some of these dangerous cities as training grounds for our military.”
That would be grotesquely illegal. For more than 100 years, our service members have almost never participated in civilian law enforcement. In fact, Congress passed the Posse Comitatus Act (PCA) in 1878 criminalizing use of the military “to execute the laws.”
The PCA was meant to ensure that the military wouldn’t be able to stop former Confederate states from erecting Jim Crow regimes. But in the intervening years, it has become a bulwark of civil-military relations.
Los Angeles
The National Guard deployment to Los Angeles was not denominated as a law enforcement operation, despite Trump’s intemperate language confusing the issue.
Trump federalized California’s National Guard troops under 10 U.S.C. § 12406, which empowers the president to take control of state militias in case of invasion, rebellion, or when he is “unable with the regular forces to execute the laws of the United States.”
Pointing to a couple of hours of rioting in Los Angeles, which was quickly put down by the LAPD, Trump claimed that ICE was unable to snatch brown people off the street fast enough to satisfy Stephen Miller. (Slight paraphrase.) This rationale did not satisfy trial Judge Charles Breyer, but it did satisfy the Ninth Circuit, which held that the president’s declaration of an emergency was due substantial deference, and thus the brief spasm of violence was predicate enough.
But those National Guard troops weren’t enforcing the law in LA — or at least, they weren’t supposed to be. They were supposed to be guarding federal buildings and Homeland Security personnel so that Kristi Noem’s goons could “execute the laws.”
Judge Breyer reasoned that swapping soldiers in to do jobs that ICE agents normally perform, like erecting perimeters to detain suspects, amounted to civilian law enforcement. In a second injunction, he ruled that the deployment clearly violated the PCA, but that order was also stayed by the Ninth Circuit pending review.
Portland
In Oregon, Trump seems to have jumped the gun after Fox News aired five-year-old footage of protests in Portland, which he insisted upon believing were real and current.
Unlike in Los Angeles, where there were pockets of violent pushback against ICE, there was simply no violence in Portland to speak of. And so Trump and his minions invented some, breathlessly hyping a non-existent “radical left reign of terror” and attacks on federal buildings as justification to deploy the state’s National Guard.
The state raced into court to halt the incursion on its sovereignty, and Judge Karin Immergut, a Trump appointee, agreed. After a brief hearing she enjoined the federalization and deployment of Oregon National Guard service members to Portland, finding that there was no violence that impeded the government executing the law.
“Based on the current record, it is clear that any threats to federal agents and property are readily remedied — as they have been — by federal civilian law enforcement, with the support of State and local law enforcement,” she wrote.
Ragnarok enthusiast Stephen Miller called this “judicial insurrection,” falsely claiming that “Portland and Oregon law enforcement, at the direction of local leaders, have refused to aid ICE officers facing relentless terrorist assault and threats to life.” Literally none of that happened.
As Judge Immergut pointed out in her order, protesters are doxxing agents and shining flashlights in their eyes — not exactly “terrorist assault” — and Portland police have regularly monitored and responded to the safety concerns of federal agents in their patch.
When the Trump administration tried to get around the injunction by deploying federalized Guard troops from California, Judge Immergut expanded the temporary restraining order to bar deployments of any state’s guardsmen in Portland.
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Chicago
With that reminder that courts require at least some violence as a predicate for National Guard deployment under § 12406, the Department of Homeland Security is currently seeking to manufacture some in Chicago.
With camera crews in tow, they’ve staged a series of violent assault on civilians, simultaneously blasting out press releases claiming to have been attacked. In one incident, the Department of Homeland Security alleged that multiple cars rammed an ICE vehicle and brandished weapons at agents. Footage of the events shows the agents hitting the victim’s car, and then shooting the driver through the windshield.
In another, agents conducted a wildly illegal raid on an entire apartment building in the middle of the night, pulling babies out of their beds and detaining citizens for hours. Last weekend, they shot a priest in the head with a pepper ball.
Secretary Noem and her henchman Greg Bovino, a sadistic thug from central casting, actively put themselves in the middle of crowds of protesters at the ICE processing facility in nearby Broadview, Illinois, in what can only be seen as an act of naked provocation.
On October 3, Noem exhorted ICE agents to “hammer these guys that are advocating for violence against the American people,” followed by Bovino’s vow to “roll up” what he described as an “unsafe crowd.” In fact, the demonstrators were confined to a free speech area blocks from Broadview, under the watchful eye of local police.
All the while, the Trump administration keeps up a steady drumbeat calling Chicago a war zone. And yet, it may have undercut its own case by touting the wild success of its “Midway Blitz” raids, boasting of upwards of 1,000 arrests. DHS cannot seriously claim to be unable to execute the law while tweeting “Antifa-aligned domestic terrorists have nowhere to hide: DHS is upholding the rule of law.”
The Trump administration dramatically escalated the situation by summoning Texas’s National Guard to Chicago. As of this writing, a trial judge is still pondering whether to grant an injunction barring the deployment of guardsmen from any state within Illinois. But Trump has made clear that, if courts won’t allow him to invade blue states, then he will simply escalate further.
Insurrection Act
“We have an Insurrection Act for a reason,” Trump said Monday. “If I had to enact it, I’d do that. If people were being killed, and courts were holding us up, or governors or mayors were holding us up, sure I do that.”
Indeed we do have an Insurrection Act for a reason — and that reason is not because the president wants to punish his political enemies. Nor is it for quelling peaceful protests, as Trump mused about doing during his first term. The Insurrection Act is an exception to the Posse Comitatus Act, which allows the president to use the military for civilian law enforcement in cases of rebellion.
Presidents Eisenhower and Kennedy invoked the Act to enforce desegregation when Southern states refused to carry out the law. President George H.W. Bush invoked it in 1992 during the rioting in Los Angeles after the acquittal of the cops who beat Rodney King.
On Tuesday night, Trump posted an attorney general’s opinion from 1965 advising President Johnson on the legality of invoking the Insurrection Act to protect civil rights protesters on their march from Selma to Montgomery, Alabama.
He followed that up with a call to jail the governor of Illinois and the mayor of Chicago: “Chicago Mayor should be in jail for failing to protect Ice Officers! Governor Pritzker also!”
In reality, the Chicago Police Department has aggressively interposed itself between protesters and ICE. There is no rebellion, looting, or widespread inability to enforce the law.
Trump is simply claiming that crime, which is down everywhere, constitutes some kind of “emergency” that justifies putting soldiers on the streets of blue states. And so we are back in the same legal posture we have been in for the entirety of Trump’s second term: The president seizes on a grant of authority which is only supposed to be exercised in an “emergency,” declares an endemic problem to be an acute one, and then insists that courts have no authority to review his emergency determination, no matter how divorced from the facts or the law.
He calls the trade deficit an emergency and seizes Congress’s tariff power. He declares an energy emergency to kill renewable projects and prop up fossil fuel companies. He declares that we’re under Venezuelan invasion by dint of Tren de Aragua shock troops, and claims a right to summarily deport any Venezuelan immigrant to a Salvadoran torture prison. He says that local police departments are turning a blind eye to violence against ICE, and seizes control of state militias.
The Supreme Court’s conservatives have largely let Trump get away with it, an abject failure which led us to this disastrous juncture. In particular, the Court vacated a lower court ruling in California which barred ICE from using race as a basis to detain suspected undocumented immigrants for questioning. This effectively legalized racial profiling, dubbed “Kavanaugh stops” after Justice Brett Kavanaugh’s preposterous characterization of a cheery colloquy, after which citizens are free to go on their merry way.
There is a straight line between that shadow docket order and the government using Black Hawk helicopters to attack an apartment building in Chicago, kicking in every door in the 130-unit structure, separating the residents by race, handcuffing toddlers, and detaining whole families without suspicion for hours on end. The Court has made clear that it will allow Trump to violate every constitutional prohibition, removing any obstacle in his way, and crediting the most farcical legal argument.
“We generally don’t determine alienage while in the building,” Bovino smirked, while insisting that “no rights have been violated today.”
Trump claims the unreviewable authority to substitute his “alternate facts” emergency for reality and flood Democratic strongholds with troops from other states. And if courts block him, he threatens to declare an even more fantastical emergency to allow soldiers to occupy blue states as “police” men. It’s a wild assault on state sovereignty, bringing us ever closer to the brink of civil war.
This is despotism, and whatever chaos and violence is about to be unleashed lies squarely on the robed shoulders of Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
That’s it for today
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Excellent piece…thank you, Liz!
This is not law enforcement. It’s behavioral theater, a manufactured crisis designed to justify authoritarian overreach.
What we’re witnessing is the strategic deployment of perceived threat to override legal boundaries and flood cities with militarized force. As I’ve written cruelty isn’t incidental, it’s currency. The spectacle of domination becomes the message.
From a behavioral lens, this is classic incentive distortion: redefine reality, reward compliance, punish dissent. When courts defer to “alternate facts,” they don’t just enable executive overreach, they erode the cognitive scaffolding of democratic accountability.
I’ve been exploring how identity evolves through experience. This moment demands that we evolve our civic reflexes too—-to recognize when legality is being hollowed out and replaced with performative despotism.
—Johan
Professor of Behavioral Economics and Applied Cognitive Theory
Former Foreign Service Officer
As far as I am aware mainstream US conservatives are the only ones on the planet who are repeatedly trying to cause riots and civil unrest. Strange times we live in. I just hope angry folk of the left don't get sucked in.