Trump’s war against the states

The recent killing of two US citizens by Immigration and Customs Enforcement agents marks a grim turning point in President Donald Trump's efforts to militarise domestic law enforcement.

For months, President Donald Trump’s aggressive anti-immigration campaign has threatened to push the US to the brink of genuine civil conflict without quite crossing the line.

But the killing of US citizens Renée Good and Alex Pretti by federal immigration officers in Minneapolis this month has made it clear that this once invisible boundary can, in fact, be breached.

After videos of Immigration and Customs Enforcement (ICE) agents killing Pretti – an intensive-care nurse who was observing and recording a raid – provoked public outrage, Trump struck a more conciliatory tone and removed Gregory Bovino, the senior Border Patrol official who had become the public face of the crackdown in Minneapolis. Even so, the conflict now playing out on the streets of major American cities is unlikely to abate.

Ironically, and in contrast to traditional party alignments, this conflict pits an increasingly authoritarian Republican president against Democratic state officials asserting their constitutional authority.

As tensions escalate, governors and mayors in Democratic-controlled states and cities find themselves effectively untethered from the federal system designed to constrain executive power.

State and local leaders have long assumed that close intergovernmental cooperation – a core tenet of federalism – would temper Trump’s efforts to undermine constitutional rights.

But the unleashing of ICE in state and local jurisdictions, the attempts to label Good and Pretti as “domestic terrorists,” and the obstruction of state and local investigations into their deaths all underscore the administration’s contempt towards this foundational feature of American governance.

The standard constitutional remedy for a rogue executive threatening civil breakdown is the separation of powers. In the Trump era, however, both Congress and the Supreme Court have largely abdicated their responsibility to restrain Trump or hold him accountable.

As a result, governors and mayors face an agonising strategic dilemma typically associated with great-power conflicts: how to deter further aggression rather than provoke it.

Miscalculation could prompt Trump to invoke the Insurrection Act or, more ominously, to seize control of state capitals through the use of Presidential Emergency Action Documents – classified, Cold War-era powers originally designed to ensure order in the event of a Soviet attack.

This threat, which Trump has repeatedly raised in recent weeks, is now a sword of Damocles hanging over governors and mayors. With the recent establishment of the US Army’s Western Hemisphere Command and a National Security Strategy that makes homeland and hemispheric security a top priority, Trump could deploy federal troops to any American city within hours.

Governors and mayors are left with only two viable paths. They can maintain strategic ambiguity about how they would respond to such a takeover, or they can make clear, privately or publicly, that they are prepared to mobilise state and local resources to resist federal overreach.

Recent events, from the violence in Minnesota to the reckless seizure of Venezuelan president Nicolás Maduro, have shown that dismissing Trump’s radicalism and megalomania, or relying on the existence of moral limits, is no longer tenable.

Given that Trump’s decision-making is driven almost entirely by immediate political considerations and personal aggrandisement, open confrontation would likely invite further escalation.

The most effective course for state officials may be to hedge and prepare for the worst. They should speak publicly about the dangers of executive overreach while continuing to cooperate with federal law enforcement in all areas except immigration.

In that domain, they should propose joint operational guidelines for ICE that prohibit the use of tactical gear, masks, heavy weapons, and armoured vehicles, and require agents to comply with accepted policing standards.

To be sure, Trump could simply ignore these exhortations. With that possibility in mind, state and local officials should quietly prepare the legal filings necessary for rapid judicial intervention in response to aggressive federal actions, whether under the Insurrection Act or outside of it.

But there is no guarantee the courts will intervene. Although the Supreme Court recently blocked the administration from deploying the National Guard in support of ICE operations in Illinois on narrow statutory grounds, Justice Brett Kavanaugh took care to note in his concurrence that such limits would not apply if the president invoked the Insurrection Act, under which even active-duty troops could be deployed domestically.

The Insurrection Act permits the use of the military for domestic law enforcement when rebellion threatens national security. Trump’s likely justification would be that Antifa – a loose label inflated by the far right into a mythic enemy – constitutes an organised armed movement supported by complicit state leaders, despite the fact that Antifa is neither unified nor armed.

Although such a claim would be transparently false, the statute’s threshold is so low that even outlandish allegations could satisfy the Act’s prima facie requirements. Judicial review would occur only after troops had been deployed, when conditions might already be too volatile to contain.

Moreover, given the Supreme Court’s broad sympathy for the “unitary executive theory” – the view that presidential authority is practically absolute – it may well uphold Trump’s invocation of the Insurrection Act on the merits.

In that event, Congress would remain the only institution capable of checking Trump’s authority. Admittedly, its acquiescence has helped create the current constitutional crisis, and with both chambers under Republican control, Trump’s militarisation of domestic governance is not likely to encounter sustained resistance. Still, fissures are beginning to appear, as some Republican members have expressed unease with Trump’s impulsive behaviour at home and abroad.

This may create a narrow opening for governors and mayors to coordinate a bipartisan response. A congressional awakening may seem improbable, but if Trump invokes the Insurrection Act or similar emergency authorities, it may represent America’s last, best hope of averting constitutional breakdown. - FMT

Steven Simon, distinguished fellow and visiting professor at Dartmouth College, is the former senior director for the Middle East and North Africa at the National Security Council (2011-12). Jonathan Stevenson, senior fellow at the International Institute for Strategic Studies and managing editor of Survival, is the former director for political-military affairs, Middle East and North Africa, at the National Security Council (2011-13).

The views expressed are those of the writers and do not necessarily reflect those of MMKtT.