Burning flags, martial law, and a dozen thoughts on the protests in L.A.

Plus: a 1963 essay, what I wrote to our twins about summer 2020, and more

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A take I haven’t written elsewhere

Burning flags, martial law, and a dozen thoughts on the protests in L.A.

(via)

1. Initial polling suggests Americans are divided and unsure about President Trump’s decisions to send the National Guard and a contingent of Marines to respond to the protests against immigration raids and associated rioting in Los Angeles, though a plurality opposes both choices. Alas, the numbers are basically split along partisan lines, so this doesn’t look like evidence of any basic American instinct against responding to civilians with the military rather than domestic law enforcement.

2. I don’t know enough to say whether California Gov. Gavin Newsom is correct in his lawsuit’s contention that Trump has overstepped legal bounds here, though I do find it plausible. Certainly, I think it runs afoul of the spirit of the Constitution’s Tenth Amendment default of police power—the “system of internal regulation, by which it is sought not only to preserve the public order and to prevent offenses against the State, but also to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others”—to the states.

3. But it also sounds like Trump could invoke federal insurrection law to give himself authority to send in the troops. To date he hasn’t done that, which I am inclined to suspect is typical procedural sloppiness made remarkable by the fact that, on this, he wouldn’t even have to bother seeking congressional sign-off. However, as Reason’s Jacob Sullum documents, Trump initially declined to call events in L.A. “insurrection” but has since begun to use the term. (The Reason team in general is killing it with this story; read

   Nancy Rommelmann
   for color from the scene and
   Matt Welch
   ’s escalation play-by-play.)
   

   No one cares about procedure until it’s too late

4. Incidentally, that insurrection law is too ambiguous in its phrasing and therefore subject to abuse by presidents of all parties. It should be reformed.

5. If Trump did invoke the Insurrection Act, legal scholar

   Walter Olson
   explained to me for a piece at The Week in late 2020, that would not be the same as martial law and it would not permit him to use the troops deployed to do anything but enforce extant law. Constitutional rights and protections remain fully in play.

6. The “thing to remember about the Insurrection Act,” Olson said, “is that it doesn’t allow federal troops to enforce anything but already-prevailing federal, state, and local law. It does not authorize martial law in the sense of deprivation of ordinary civil liberties, special tribunals, irregular punishment, street justice, cutting off resort to the courts, etc.”