The Daily Dose: Institutions Without Institutionalists
The deployment of troops to Los Angeles exposes a gaping hole in America's system of government.
Now that Donald Trump has deployed thousands of soldiers to Los Angeles, the commentariat is awash in debate over his motivations. Was it an understandable, if excessive, reaction to violent protesters? Was it instead meant to distract from the depraved budget bill he is trying to ram through Congress?
Such speculation misses the point. There is a simple reason why Trump sent troops into Los Angeles: because he can. But why he can is a question that gets to the heart of our predicament.
American democracy, and the separation of powers on which it was based, depended on the presence of institutionalists who were willing to push back against an authoritarian president.
On the face of it, there is nothing illegal about Trump's order. A specific provision in Title 10 of the U.S. Code on Armed Services allows the president to deploy the National Guard if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.”
What constitutes a “rebellion,” you ask? The law does not specify. This means that it is up to the president to decide—the same president who is deploying the troops.
That is quite a loophole. Indeed, the latitude afforded by the provision is wide enough to permit all manner of abuses. So long as the president claims that there is a “rebellion,” he can sic the army on the American people at his discretion.
In this case, Trump clearly is abusing his authority, even if he is technically following the letter of the law. “For the federal government to take over the California National Guard, without the request of the governor, to put down protests is truly chilling,” explains Erwin Chemerinsky, the Dean of Law at the University of California, Berkeley. “It is using the military domestically to stop dissent.”
Why, then, have presidents not abused this authority in the past? After all, the last time any president federalized the National Guard was in response to the LA riots of 1992. The last president to do so over the objections of a state governor was Lyndon B. Johnson, who deployed the National Guard to protect civil rights protesters in Alabama in 1965.
If past presidents refrained from pushing the law to its limits, there is a good reason for that. The current administration is the first one in living memory, if not all of American history, that is not dominated by institutionalists.
An institutionalist is an officeholder whose primary allegiance is to the Constitution instead of the president personally. The institutionalist does her job instead of shamelessly kowtowing to her political master.
Trump wanted to use the military against protesters during his first term. But he was not able to do it. That is because the institutionalists in the Joint Chiefs of Staff, the Justice Department, and the White House recognized this naked abuse of authority for what it was and refused to go along.
Mark Milley, the Chairman of the Joint Chiefs at the time, and Mark T. Esper, the defense secretary, both defied Trump’s order to shoot protesters in the streets. They were backed in this decision by Attorney General William Barr and the lawyers in the White House Counsel’s office. Their collective pressure was enough to make the president back down.
Those institutionalists are gone now. The officials who replaced them were put there precisely because they can be relied upon to do Trump’s bidding.
In this way, American democracy, and the separation of powers on which it was based, depended on the presence of institutionalists who were willing to push back against an authoritarian president.
Now that they have disappeared, all that remains is us.
Absent resistance from civil society, Trump will succeed at installing a police state. If civil society acts, he will fail.