Yesterday, federal District Judge Charles Breyer ruled that the Trump Administration’s federalization of the National Guard in Los Angeles to assist in immigration law enforcement violated the Posse Comitatus Act, which is 18 U.S.C. section 1385. The Posse Comitatus Act bars use of the military for law enforcement, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Trump Administration argued that the National Guard authorization statute on which it relied—10 U.S.C. section 12406(3)—is an express exception. Judge Breyer’s ruling to the contrary, at pages 26-32 of his decision, was his core holding. Although the Los Angeles deployment was not about elections, if an appellate court adopts certain arguments made by the Trump Administration in that case, such a decision could set our country on a path to military interference in the 2026 elections.
It would be criminal for any Administration to use the military to interfere with voting or vote counting in any election. In particular, 18 U.S.C. sections 592 and 593 (“Sections 592 and 593”) criminalize both having troops at the polls and military interference with voting, conducting elections, or election officers. These statutes apply to use of both the regular military and members of National Guard units “called into Federal service.” 10 U.S.C section 12405; see also 10 U.S.C. section 10106. Although Sections 592 and 593 apply only to officers and members of the military, 18 U.S.C. section 2 also makes it criminal for others—for example, a member of the Cabinet or a White House official—to aid, abet, counsel, command, induce, procure, or willfully cause violations of Sections 592 and 593. And 18 U.S.C. Section 371 makes it criminal for both military and non-military officials to conspire to violate Sections 592 and 593.
But, in the Los Angeles case, in addition to the Trump Administration’s expansive interpretation of 10 U.S.C. section 12046(3), the Administration has raised three arguments that, if adopted by the Ninth Circuit or the Supreme Court, would disable federal court enforcement of Sections 592 and 593 and thus encourage using the military to interfere in the 2026 elections. The first such Trump Administration argument is that the President has an inherent power to use the military to protect federal property, federal personnel, and federal functions and that this inherent protective power is not subject to federal statutory limitations. One can almost hear the Trump Administration arguing in 2026 that it is using the military to protect the federal function of federal elections. But Judge Breyer’s decision at 33-42 exhaustively surveyed the precedents and correctly decided that any inherent protective power to use the military domestically is subject to federal statutory restrictions. Under this ruling, no inherent protective power would override the statutory prohibitions in Sections 592 and 593 against employing the military to interfere with elections….