Lawlessness is not the answer

Whether it's the government, the public, or terrorism

President Trump is right to deploy the California National Guard to quell growing Los Angeles violent protests against ICE. L.A. is a hotbed seemingly always ready to break into riots, so the display of force is likely to save a lot of property damage and injury before it happens. But that doesn’t make it the best outcome or unfolding of events.

Photo by Alex McCarthy on Unsplash

The protests against ICE are justified, as long as they are peaceful. The Trump administration has unchained the worst actors in the immigration enforcement regime, and allowed them to run amok, lawlessly, in a feast of reactionary vengeance against the soft border policies of the Biden administration. It is only the assiduous efforts of the courts, including the Supreme Court, that has reigned in some of the worst abuses.

But the abuses continue. I wrote about them here. The real abuse is when agents are free to engage in “collateral” arrests of relatives and associates of targets of their raids. This isn’t just rounding up the worst, who are here with final deportation orders and criminal pasts. It’s a net that is increasingly pulling in every kind of person, even those who have followed our legal system and done everything right. In its most harsh light, it’s open racism against certain groups, while others, like white South Africans, get token refugee status. For our government to engage in such disgusting behavior denigrates the entire country, which is supposed to the the “land of the free, and the home of the brave.”

ICE deserves to be protested against. There’s a line between peaceful, First Amendment-protected protest, and violent mobs. There’s a line between political opposition to a government policy and engaging in dangerous grandstanding. Of all people, the MAGA crew, who have consistently maintained Jan 6th rioters as patriots, and characterized Trump’s actions on that day as political speech, not incitement, should know not to play games. But they play the game, and it’s lawless.

When Rep. LaMonica McIver is being prosecuted by U.S. attorneys for “interfering” with the arrest of Newark Mayor Ras Baraka at a protest against ICE, how is that law and order, when January 6th prosecutions are a witch hunt? Playing political games with lawfare, by either side, is both dangerous and dumb.

The lawlessness is not confined only to immigration. President Trump has illegally refused to enforce a law that should shut down TikTok because Chinese-owned ByteDance refuses to divest itself. Now China is openly thumbing its nose at our laws by bringing in Chinese managers, because the company missed sales goals set by its communist masters. No matter that the U.S. government, by an unambiguous act of Congress, signed by the previous president, compels the executive branch to enforce the law. Instead, Trump has spent his days posting about the illegitimacy of the autopen. I wouldn’t be surprised if there is coming some government lawsuits to overturn the will of Congress because the bill was signed by a machine long-recognized as a legal and efficient way of handling legislation while the president is not in Washington.

Of course there’s reason for concern about former President Biden. I absolutely believe that 90 percent of what happened in the West Wing was not “Biden in control.” I think Biden set the tone of what he wanted, and let his staff do the work. And in his absence, which was most of the time, the staff did what it thought Biden wanted. Was there ever an instance where the autopen signed something that Biden didn’t explicitly order? I wouldn’t be surprised—at least he might not remember having ordered it—and the staff might have conflicting accounts. But even if it was true, that isn’t a reason why everything, or any one thing, that Biden approved should be held as illegitimate, or overturned.

There’s a 25th Amendment to handle situations where the president is unable to discharge his duties because he is non compos mentis. It doesn’t even require a medical opinion. It only requires the Vice President and a majority of the cabinet to agree, and for Congress to be informed. Under Biden, that never happened. In fact, the opposite happened, where the administration and its media friends used every obfuscation to cover up the president’s mental deficits.

Was it lawless for the Biden administration to play that game? No. It wasn’t the best option, but that was a political decision, not a defiance of law. No doctor’s opinion can stand as law to find a president incompetent. Obviously, if the president is in some persistent unconscious state, like a coma, presidential succession can come into play. But look at President Ronald Reagan’s attempted assassination, and the confusion that resulted from Secretary of State Alexander Haig’s “I am in control here at the White House” statement. We don’t know who was “in control” day to day at the White House during Biden’s term, but that is a matter for historians, not rabid Trump lawyers to litigate.

We do know it’s lawless for the Trump administration to play legal chess against Harvard University, not because Harvard was insufficiently sorry about siding with Hamas—Harvard has blocked diplomas for those who participated in anti-Jewish behavior—but because Harvard has resisted Trump’s arm-twisting on how it should govern itself.

Lawfare cuts both ways. It was dangerous for the Biden administration, and certain ambitious prosecutors in New York and Georgia to go after Donald Trump with hammer and tongs, because of the very situation we now find to be true. If Trump survived all the legal issues and became president, then the same levers would be used and weaponized against his enemies. And they are.

The Democratic Party has given Trump plenty of cover to be lawless. Pro-Palestinian rallies that turn into occupations, or riots, along with anti-ICE violent protests give plenty of reason for Trump to correctly federalize state militia to protect public order, especially when the state governors refuse to do it. We are seeing that happen today. That is a lawful use of military force on our own land against our own citizens.

What may happen in the future may strain the limits, and could defy the law itself. If Trump can use the Alien Enemy Act of 1798 to deport people in defiance of a federal court order, and only comply later when the Supreme Court rules, what can he do when presented with an opportunity to use the military to achieve his desires? We saw what Trump asked the military to do in Lafayette Square in 2020. The military pushed back. We saw January 6th, 2021. The military pushed back. In 2025, the military is not pushing back on anything. Trump will get his birthday parade.

If Trump orders the military to suppress what he declares is an insurrection, it will take the courts quite some time to react, because the courts do not have direct jurisdiction to order the military to do anything. In the American Civil War, it took four years before President Abraham Lincoln’s illegal suspension of habeas corpus was overturned, and another two years before Congress acted to repair the law. It’s likely Trump and his legal team will have lots of time to maneuver if the military is used in the manner it’s being employed in Los Angeles, for other reasons in other places.

The reaction to what’s happening in Los Angeles should not be more lawlessness by those who oppose ICE and what the Trump administration is doing. That will only provide more legal cover for Trump to use the military and override state and local law enforcement. However, I think the use of violence as a means of political speech and strategy by certain wings of the Democratic Party might be too ingrained to stop it. The use of lawlessness to oppose lawlessness is a spiral into chaos, or authoritarian tyranny.

I hope it’s not too late to stop it.

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