In the ninth century, Alfred, king of the Anglo-Saxons, discovered the value of federalism. He broke his realm up into shires (we’d know them as counties) and, to keep order, he appointed sheriffs. To enforce the law, the sheriffs had the power to organize posses of citizens. People who didn’t agree to serve lost their land.
That led to the policy of posse comitatus, translated as “the power of the county.” Sheriffs could use the tool not only to track down criminals but to put down riots, which created a long tradition that has now bled onto the streets of Los Angeles in the dispute between President Donald Trump and California Gov. Gavin Newsom.
In between Alfred and Trump, however, came an important turning point in history, the presidential election of 1876, one of the nastiest ever in America. Alfred, the 1876 election, and Trump have one thing in common: the use of military power for domestic security.
Republican Rutherford B. Hayes was up against Samuel J. Tilden, a New York Democrat, who won a majority of the popular vote but came up just one electoral vote shy of winning the White House. The Democrats were furious, convinced that the Republicans had stolen the election. Federal troops were still stationed in the South as part of Reconstruction, and Democrats were sure that the Republican administration of Ulysses S. Grant had used federal troops to screen out Democratic voters.
Republicans insisted that they ought to be awarded the electoral votes from four outstanding states — Florida, Louisiana, Oregon, and South Carolina — which would give them the presidency. The Democrats dug in. To break the deadlock, Democrats reluctantly agreed to give the White House to Hayes in exchange for ending Reconstruction by pulling federal troops from the South. To help seal the deal, Congress passed the 1878 Posse Comitatus Act, which prohibited the use of the Army (and, later, other military branches) for domestic law enforcement.
So we have a rich tradition in the use and suspicion of the armed forces in local disputes, entangled with issues of race and slavery. In England of olden times, the penalty for refusing to join a posse was slavery. In the U.S., the Posse Comitatus Act removed the federal force that enforced the end of slavery, unleashing a century of Jim Crow.
During the Eisenhower, Kennedy, and Johnson administrations, the presidents got around posse comitatus by invoking Title 10 of the Insurrection Act of 1807, which gives the president authority to use federal troops for domestic law enforcement “whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” These were the first uses of Title 10 since the passage of the Posse Comitatus Act.
Now, to federalize the National Guard and send in the Marines, Trump has gone back to Title 10 of the 1807 law. That provides him a way to sidestep the American application of posse comitatus and its prohibition against the use of federal troops for domestic security. And, as was the case in 1965, when Lyndon B. Johnson sent in federal troops to enforce the right of two black students to enroll in the University of Alabama, Trump did so without the approval of the state’s governor.
Was Trump using the troops to safeguard the citizens of Los Angeles, as he claimed? Or was it to deny due process to migrants, as the protesters argued? The entanglements in American history are impossible to ignore or to sort out. In arguing their respective cases, Trump finds himself on the side of LBJ, and Newsom on the side of George Wallace.
The rhetoric has been heated. Federal border czar Tom Homan threatened to arrest Newsom for interfering with the federal troops. A Fox News reporter asked Trump if he agreed. “I would do it if I were Tom,” Trump replied. “I think it’s great. Gavin likes the publicity, but I think it would be a great thing.” Newsom, he said, is a “nice guy” but is “grossly incompetent.”
Newsom shot back to Homan, “He’s a tough guy, why doesn’t he do that? He knows where to find me.”
History suggests cautions to Trump in the use of federal force. When LBJ sent federal troops to Alabama, he knew he would pay a heavy political price. Eisenhower and Kennedy had both experienced enormous backlash for their decision to send in federal troops. In LBJ’s case, he believed Wallace had agreed to send in the National Guard, but under state authority. Wallace reneged that evening and LBJ concluded he had no choice but to send in federal troops — and take the political heat. The next morning, LBJ in a phone call said Wallace was "a no-good son of a bitch!"
Neither Wallace nor Alabama forgot LBJ’s decision. Wallace ran against Johnson’s vice president, Hubert Humphrey, in the 1968 presidential election, and won the Deep South. Richard Nixon picked up the rest of the region with his “southern strategy,” aimed at cultivating political support by appealing to white grievances. Humphrey narrowly lost the popular vote but suffered a stinging electoral college defeat.
Trump is following the Nixon strategy with a heavy bet that grievance politics will pay off. History teaches a few important lessons here.
The first is that mixing the military with race has been a dangerous brew since Reconstruction, and it’s not possible to predict whether that gambit will pay off. Tilden lost the election but his defeat led to a century of racial division. Hayes won the presidency, but his compromise gave up federal control over civil rights policy to the states for a century of Jim Crow.
The second is that the play to grievance can backfire. Nixon’s southern strategy got him to the White House and helped him win reelection, but his political support gradually eroded as the Watergate scandal grew. Presidential overreach can sap the strength of even a strong political base, and that risk awaits any president who follows suit.
Finally, posse comitatus and the Insurrection Act have always been about federalism and the use of power, and more specifically about race in the U.S. since Reconstruction. The American experience in stirring these ingredients together has always been deeply divisive. Trump’s decision drives the wedge deeper.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
