In contrast, Rutgers University professor Bruce Afran says deploying military forces against Americans is “completely unconstitutional” in the absence of a true state of domestic insurrection. “There was an attack on ICE’s offices, the doorways, there was some graffiti, there were images of protesters breaking into a guardhouse, which was empty,” he says. “But even if it went to the point of setting a car on fire, that’s not a domestic insurrection. That’s a protest that is engaged in some illegality. And we have civil means to punish it without the armed forces.”
Afran argues that meddling with the expectations of civilians, who naturally anticipate interacting with police but not armed soldiers, can fundamentally alter the relationship between citizens and their government, even blurring the line between democracy and authoritarianism. “The long-term danger is that we come to accept the role of the army in regulating civilian protest instead of allowing local law enforcement to do the job,” he says. “And once we accept that new paradigm—to use a kind of BS word—the relationship between the citizen and the government is altered forever.”
“Violent rioters in Los Angeles, enabled by Democrat governor Gavin Newsom, have attacked American law enforcement, set cars on fire, and fueled lawless chaos,” Abigail Jackson, a White House spokesperson, tells WIRED. “President Trump rightfully stepped in to protect federal law enforcement officers. When Democrat leaders refuse to protect American citizens, President Trump will always step in.”
As the orders to mobilize federal troops have come down, some users on social media have urged service members to consider the orders unlawful and refuse to obey—a move that legal experts say would be very difficult to pull off.
David Coombs, a lecturer in criminal procedure and military law at the University of Buffalo and a veteran of the US Army’s Judge Advocate General’s Corps, says it’s hypothetically possible that troops could question whether Trump has the authority to mobilize state guardsmen over the objection of a state governor. “I think ultimately the answer to that will be yes,” he says. “But it is a gray area. When you look at the chain of command, it envisions the governor controlling all of these individuals.”
Separately, says Coombs, when troops are ordered to mobilize, they could—again, hypothetically—refuse to engage in activities that are beyond the scope of the president’s orders, such as carrying out immigration raids or making arrests. “All they can do in this case, under Title 10 status, is protect the safety of federal personnel and property. If you go beyond that, then it violates the Posse Comitatus Act.” Federal troops, for instance, would need civilian police to step in at the point that local authorities want peaceful protesters to disperse.
The San Francisco Chronicle reports that, in a letter on Sunday, Homeland Security Secretary Kristi Noem requested that military troops be directed to detain alleged “lawbreakers” during protests “or arrest them,” which legal experts almost universally agree would be illegal under ordinary circumstances. The letter was addressed to Defense Secretary Pete Hegseth and accused the anti-ICE protesters of being “violent, insurrectionist mobs” aiming to “protect invaders and military aged males belonging to identified foreign terrorist organizations.”
Khun, who warns there’s a big difference between philosophizing over what constitutes an unlawful order and disobeying commands, dismisses the idea that troops, in the heat of the moment, will have an option. “It’s not going to be litigated in the middle of an actual deployment,” he says. “There’s no immediate relief, no immediate way to prove that an order is unlawful.”
Khun says that were he deployed into a similar situation, “me and my junior soldiers would not respond to a nonviolent or peaceful protest.” Asked what protesters should expect, should they engage with federal troops trained for combat overseas, Kuhn says the Marines will hold their ground more firmly than police, who are often forced to retreat as mobs approach. In addition to being armed with the same crowd control weapons, Marines are extensively trained in close-quarters combat.
“I would expect a defensive response,” he says, “but not lethal force.”
Additional reporting by Alexa O’Brien.
