Photograph Source: U.S. Customs and Border Protection – CC BY-SA 2.0
“In the past four months, the Pentagon has sent thousands of active-duty combat troops and armored Stryker combat vehicles to the southwestern border to confront what President Trump declared was an ‘invasion’ of migrants, drug cartels and smugglers. The military has also dispatched U-2 spy planes, surveillance drones, helicopters and even two Navy warships to surveil the borders and coasts round the clock.”
– The New York Times, front page, May 16, 2025
In 1878, the Congress enacted the Posse Comitatus Act, prohibiting federal troops from engaging in domestic law enforcement except in “cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Over the years, Congress was sparing in enacting such authorizations, and the Executive Branch and the courts have narrowly interpreted the Constitutionally-based authorizations for using soldiers as domestic police. This has changed in the Trump administration, which has deployed more than 8,500 active-duty troops on the border.
The purpose of the Posse Comitatus Act was to stop U.S. Marshalls from deputizing soldiers to serve the Border Patrol or the Customs Service. Until now, the conventional wisdom has been that the use of our military forces for law enforcement was fraught with peril, and should only be indulged in dire emergencies. There is no emergency on the southwestern border. Yielding to Trump on this issue will only make it easier for him to resort to the Insurrection Act of 1807 that permits the president to nationally deploy the U.S. military in domestic situations that he perceives as threatening. That could include using the military to suppress peaceful protests, which Donald Trump wanted to do in his first term.
In addition to the militarization of the border, Trump has declared a ribbon of land along the 180-mile length of New Mexico’s southern border to be an Army base and a national defense area. At least 400 migrants have already been arrested and charged with willfully violating this defense zone, which finds dozens of shackled migrants being taken to federal courts on a daily basis. Last week, a federal judge dismissed charges against 100 migrants, explaining that the migrants did not know they were unlawfully entering a restricted military area. Some of the migrants had been arrested before warning signs had been posted. Others arrived in the desert area in the dark and could not read the warnings.
The larger question remains: what is being done about the Trump administration’s expansion of its powers and the military presence on the southwestern border? The short answer: virtually nothing! For the past four months, we have witnessed a series of unprecedented actions by a U.S. president that are unlike anything in U.S. history. The Trump administration has frozen funds that federal courts ordered to be spent; has ignored instructions to return planes carrying immigrants to El Salvador; and has defied a Supreme Court ruling to facilitate the return of Abrego Garcia, who was wrongfully deported as well. Trump’s executive order denying birthright citizenship to the children of undocumented immigrants and foreign residents violates the 14th Amendment to the Constitution.
The list of Trump’s transgressions goes on and on. Trump fired inspectors general from numerous agencies and departments without notifying Congress, a violation of the law. The FBI disbanded the department that investigates members of Congress as well as fraud by federal employees, thus marginalizing units responsible for public corruption cases. Numerous officials from independent agencies such as the Federal Trade Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board were dismissed without explanation. Without congressional approval, Trump and Elon Musk dismantled the Agency for International Development by cutting nearly every position and ending nearly all funding.
There has been no sign of congressional pushback to any of this until last week, when Trump summarily fired the head of the Library of Congress and tried to appoint one of his personal lawyers as the new acting head of an institution that belongs to Congress. These actions would allow the Trump administration to compromise the integrity and independence of the Congressional Research Service that services around 75,000 congressional requests annually. These requests and the research itself are protected from disclosure under the speech or debate clauses of the Constitution. There is a possibility that Trump’s illegal actions could lead to a bipartisan effort to ensure that Congress, not the White House, controls the Library of Congress. The Library was created to serve Congress 225 years ago; only Trump has threatened its role.
Congressional apathy over the constant violations of the separation of powers is matched by the national apathy in responding to the deceitful and illegal actions of the Trump administration as well as the “hateful vision of American white nationalism,” according to former U.S. Attorney Joyce Vance. Our overall apathy gives greater energy to the creeping authoritarianism that is taking over the politics and policies of the United States. Without any use of force, Trump has managed to attack and weaken major universities, including Harvard and Columbia; major media outlets, including the Washington Post and the Los Angeles Times; major law firms, including Skadden,Kirkland & Ellis, Latham & Watkins, and Paul, Weiss, who agreed to provide $940 million in pro bono legal services to causes that Trump supports. Trump is using the same playbook used by authoritarians who rule in Hungary, Turkey, and Venezuela.
The appeasement practiced by these key institutions is making Trump’s goals far too easy to reach. And as Winston Churchill warned, “appeasement is like feeding a crocodile and hoping to be the last one eaten.” David Remnick, the editor of the New Yorker, warned that Trump “will persist in his assault until he feels the resistance of a people who will tolerate it no longer.” The nation has a long way to go.
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