California’s fight to curb in the deployment of troops by President Trump in Los Angeles is based on a 19th century law with an origin soaked in blood and a name that seems to be withdrawn from a spaghetti western.
In a pivotal decision of this week, the main American district judge Charles R. Breyer has ordered the federal government to hand over evidence to the state authorities aimed at proving that the actions of the troops in Southern California violate the Comitatus law of 1878, which prohibits soldiers of the application of civil laws.
“The way President Trump has used and uses the Federal National Guard and the Marines since deployed in early June is clearly relevant to the Posse Comitatus Act,” wrote Breyer on Wednesday in his order “a limited accelerated discovery”.
The Trump administration opposed the decision and has already obtained a Breyer decision which would have a limited White House authority on the troops canceled by the 9th Circuit Court of Appeals.
This time, the judge of the Northern District of California clearly indicated that he “would allow the discovery of the Posse Comitatus Act” – signaling what could be the last stand of the State stand to prevent the Marines and the Forces of the National Guard from participating in the application of immigration.
The Posse Comitatus Act dates back to the consequences of the civil war when the United States government has faced violent resistance to its efforts to rebuild the governments of the southern states and enforce federal law following the abolition of slavery.
The text of the law itself is light, its relevant section just over 60 words. However, when it was promulgated, it served as a legal epitaph of reconstruction – and a preface by Jim Crow.
“He has these very despicable beginnings,” said Mark P. Nevitt, professor of law at Emory University and one of the country’s main experts on the law.
Before the civil war, the American army was maintained small, in part to avoid the types of abuse of the American colonists suffered by the British.
At the time, the authorities could bring together a team of civilians, called a comitatus, to help them, as sometimes happened in California during the gold rush. States also had militias that could be called by the president to reimburse the army in wartime.
But the police by the American army were rare and deeply unpopular. Historians said that the use of soldiers to enforce the law on fugitive slaves – who saw the slaves escaped hunting and returned to the south – helped trigger the civil war.
In recent weeks, the Trump administration has used constitutional maneuvers invented to enforce the fleeting Slavic Act to justify the use of troops to bring the immigrants together. Experts said the leaders of the Antellum South demanded a similar application of the law.
“The South was everything for Posse Comitatus with regard to the Fugitive Slave Act,” said Josh Dubbert, historian of the Rutherford B. Hayes presidential library in Ohio.
But when the congress seriously sent federal troops to start reconstruction in 1867, the landscape was very different.
After white rioters shaved the black districts in Memphis and crowds of former Confederate soldiers massacred black demonstrators in New Orleans in the spring of 1866, “most of the south [was] Transformed into military districts, “said Jacob Calhoun, American history professor at Wabash College and reconstruction expert.
“Most researchers, not to mention the American public, do not understand the extent of racial violence during reconstruction,” said Calhoun. “They only send these troops after unimaginable levels of violence.”
Freedmen voting in New Orleans, 1867.
(Heritage images via Getty Images)
During the surveys, the black voters were greeted by white gangs seeking to prevent them from voting.
“”For most of the American history, the idea of an American army involved in the elections is a nightmare, “said Calhoun.”[Posse Comitatus] This longtime belief is to be rewritten but for more harmful purposes. »»
The Comitatus posse language was hidden in a bill for credits by the South Democrats after their party took control of the congress during the 1876 election – “perhaps the most violent election in American history,,Said Calhoun.
Historians say that white legislators in the south post-war period have sought to consecrate their ability to prevent black men from voting by prohibiting federal forces from strengthening the local militias that protected them.
“Once they have control of the congress, they want to cut the army credits,” said Dubbert. “They attach this amendment to [their appropriations bill] which is the act of Comitatus posse. »»
The bill obtained the support of certain Republicans, who wanted the use of federalized troops to put the railway strike in 1877 – the first national labor strike in the United States
“This is a time when members of the Northern White Congress give up south of the former Confédérés,” said Calhoun. “”With the posse Comitatus Act, racial violence becomes the norm.“”
However, the status itself has largely disappeared from memory, little used for most of the next century.
“The Posse Comitatus Act was forgotten for about 75 years, after reconstruction in the 1950s, when a defense lawyer challenged an element of evidence that the army had obtained,” said Nevitt. “Jurisprudence is [all] After the Second World War.
These cases have largely excited the troops that stop, seek, grasp or hold civilians – “the normal thing that the LAPD does daily,” said Nevitt. The courts have argued the principle of the foundation that military personnel should not be used to enforce the law against civilians, he said, except in periods of rebellion or other extreme scenarios.
“Our nation was largely forged because the British army raped the civil rights of the settlers in New England,” said Nevitt. “I really can’t think of a more important question than the military’s ability to use force against Americans.”
However, the law is full of scales, the researchers said – in particular in connection with the use of the National Guard.
The Ministry of Justice argued that Posse Comitatus does not apply to the current army actions in South California – and even if this is the case, the soldiers deployed there did not violate the law. He also said that the 9th circuit decision approving Trump’s authority to call the troops had made the problem of Comitatus posse.
Some experts believe that the case of California is strong.
“You literally have military wandering in the streets of Los Angeles with civil police,” said Shilpi Agarwal, legal director of Aclu of Northern California, “that’s exactly what the [act] is designed to prevent. »»
But Nevitt was more doubtful. Even if Breyer finally indicates that Trump’s troops violate the law and grant the injunction that California seeks, the 9th circuit will almost certainly, he said.
“It will be a difficult battle,” said the lawyer. “And if they find a way to go to the Supreme Court, I also see the Supreme Court with Trump.”
