The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
ICE, the LA Protests, and Trump's Domestic Use of the Military
Trump's domestic use of the military to counter anti-deportation protests in LA is so far very limited. But that could change. A big part of the root of the problem is the lawless behavior of federal immigation-enforcement agencies.
President Donald Trump has deployed some 2000 National Guard troops to Los Angeles in response to protests against ICE deportation operations. As yet, the authority he has invoked for this domestic use of the military is very limited. See the detailed analyses of the relevant law by legal scholars Chris Mirasola and Steve Vladeck. That could change if Trump decides to invoke the Insurrection Act, which grants far broader authority to use the military for domestic law enforcement. Whether and to what extent that power is subject to significant limitations is controversial. For details, see this analysis by Elizabeth Goitein of the Brennan Center, a leading expert on this subject.
In the meantime, I worry that the current, relatively limited, deployment of troops, might lead to dangerous escalation. An unfortunate incident caused by malicious, reckless, or foolish behavior by one or a few individuals on either side could lead to broader violence, or be used as an excuse for more extensive military intervention. So far, at least, I have not seen reports of rioting or other violence on anything like the scale that could justify the extreme expedient of domestic use of the military. But it's a fast-moving situation, and things might be different by the time you read this.
However things turn out, it's important to emphasize that the anti-ICE protests and resulting confrontations are in large part a result of federal immigration enforcers' own lawless behavior. Under Trump, ICE has routinely engaged in such illegal and arbitrary practices as deporting people (including many legal immigrants) to imprisonment without due process and kidnapping children as they and their families show up for legally required court appointments. More generally, this administration has repeatedly invoked bogus emergencies to circumvent constitutional and other legal constraints on executive power, and such abuses have been particularly severe in the field of immigration.
When law enforcement agencies themselves engage in systematic lawlessness, they are not entitled to the deference and cooperation they might otherwise expect from civilians. The latter have a right to resist in ways that would otherwise be illegal and unjustified. This point is distinct from traditional rationales for civil disobedience that may apply even in situations where government officials are acting completely legally, but the underlying laws are themselves severely unjust (as is also often true in the immigration field). There is additional justification for civilian resistance to and noncooperation with law enforcement, when it is the latter who are acting unlawfully.
None of this suggests that protestors are entitled to do whatever they want. Rioting and other violence that harms innocent people is still both illegal and wrong. What I wrote in 2020 at the time of the George Floyd protests—many of which degenerated into riots and looting—remains applicable today:
Much can be done to roll back abusive law enforcement practices…. But one tactic that must be avoided is the kind of rioting and looting that has occurred over the last few days…
Most of the damage caused by rioting is inflicted on innocent people who are in no way responsible for police abuses. Destruction and looting of stores and other businesses not only hurts the owners and employees of those enterprises, but also impoverishes the broader communities of which they are a part. Violence and violation of property rights reduce investment and economic development, which predictably exacerbates the poverty of minority inner-city neighborhoods. The negative economic effects can persist for many years.
It may be tempting to say that rioting and other similar violence is justified if you are doing it in the name of a just cause. But even people with legitimate grievances must still observe moral limits on tactics they use to pursue them. Ignoring this principle is a recipe for disaster.
The 2020 protestors had a legitimate grievance: widespread racial profiling by law enforcement. But many reacted in ways that were themselves unjust. So far, we have not seem large-scale rioting in LA. Hopefully, it can be prevented. We must oppose ICE lawlessness and injustice without harming innocent people ourselves.
