Richard Bernstein: The Trump Administration’s Arguments About the National Guard Threaten the 2026 Elections

Richard Bernstein is a Charter Member of the Society for the Rule of Law Institute. He is a former partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987-88 and Judge Amalya Kearse from 1986-87.

Yesterday, federal District Judge Charles Breyer ruled that the Trump Administration’s federalization of the National Guard in Los Angeles to assist in immigration law enforcement violated the Posse Comitatus Act, which is 18 U.S.C. section 1385. The Posse Comitatus Act bars use of the military for law enforcement, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Trump Administration argued that the National Guard authorization statute on which it relied—10 U.S.C. section 12406(3)—is an express exception. Judge Breyer’s ruling to the contrary, at pages 26-32 of his decision, was his core holding. Although the Los Angeles deployment was not about elections, if an appellate court adopts certain arguments made by the Trump Administration in that case, such a decision could set our country on a path to military interference in the 2026 elections.

It would be criminal for any Administration to use the military to interfere with voting or vote counting in any election. In particular, 18 U.S.C. sections 592 and 593 (“Sections 592 and 593”) criminalize both having troops at the polls and military interference with voting, conducting elections, or election officers. These statutes apply to use of both the regular military and members of National Guard units “called into Federal service.” 10 U.S.C section 12405; see also 10 U.S.C. section 10106. Although Sections 592 and 593 apply only to officers and members of the military, 18 U.S.C. section 2 also makes it criminal for others—for example, a member of the Cabinet or a White House official—to aid, abet, counsel, command, induce, procure, or willfully cause violations of Sections 592 and 593. And 18 U.S.C. Section 371 makes it criminal for both military and non-military officials to conspire to violate Sections 592 and 593.

But, in the Los Angeles case, in addition to the Trump Administration’s expansive interpretation of 10 U.S.C. section 12046(3), the Administration has raised three arguments that, if adopted by the Ninth Circuit or the Supreme Court, would disable federal court enforcement of Sections 592 and 593 and thus encourage using the military to interfere in the 2026 elections. The first such Trump Administration argument is that the President has an inherent power to use the military to protect federal property, federal personnel, and federal functions and that this inherent protective power is not subject to federal statutory limitations. One can almost hear the Trump Administration arguing in 2026 that it is using the military to protect the federal function of federal elections. But Judge Breyer’s decision at 33-42 exhaustively surveyed the precedents and correctly decided that any inherent protective power to use the military domestically is subject to federal statutory restrictions. Under this ruling, no inherent protective power would override the statutory prohibitions in Sections 592 and 593 against employing the military to interfere with elections.

The second Trump Administration argument is that it does not matter if deploying the military violates a criminal statute, because federal courts lack the equitable power to enjoin violations of criminal statutes. Judge Breyer’s decision at 46-48 rejected this argument on a number of grounds. Most important for election law, Judge Breyer relied on the history of the Posse Comitatus Act, where its triggering cause was the deploying of the military at elections. “It is ahistorical and illogical to think that Congress reacted to this by passing a statute that had as its sole enforcement mechanism federal prosecution of individual troops by the same federal government that would have ordered the troops to engage in domestic law enforcement.” (P. 48, emphasis in original) This deficiency in the government’s argument would be as obvious for violations of Sections 592 and 593.

The third Trump Administration argument suffers from a similar deficiency. The Plaintiffs in the Los Angeles case sought ultra vires relief as the vehicle to stop violations of the Posse Comitatus Act. Ultra vires relief is a remedy for official actions that lack constitutional or statutory authority. The Trump Administration argued that ultra vires relief should be unavailable for violation of a federal criminal statute. That would mean that the only remedy would be the possibility that the same executive branch that violated the criminal statute would bring a prosecution. Judge Breyer’s decision at 48-50 rejected this argument, commenting that its implications meant the Posse Comitatus Act “would have been ineffective when passed and would remain so today.” (P. 50.) The same absurd implications would apply if ultra vires relief was unavailable to stop military interference with elections that violates Sections 592 and 593.

If an appellate court adopts any of these three arguments of the Trump Administration, such a decision would neuter the federal criminal prohibitions on the use of the military, including National Guard units in federal service, to interfere with elections. These arguments are thus a dagger pointed at elections–the heart of our Republic.

This danger to federal elections is not far-fetched. In December 2020, private counsel working in support of President Trump drafted executive orders that would have deployed National Guard units in federal service to seize voting machines and records. See Brief Amici Curiae of Danforth, et al., at 29-31, filed April 4, 2024, in Trump v. United States, No. 23-939 (U.S. Sup. Ct.). Thankfully, President Trump did not issue those executive orders. If any court adopts any of the three Trump Administration arguments described above, however, next time our Republic might not be so lucky.

We live in an age where what was once unimaginable has become commonplace. The courts on appeal in the Los Angeles case should protect our country by rejecting any Trump Administration argument that would provide a precedent for criminal military interference in the 2026 or subsequent elections. Even for a judge or Justice whose judicial philosophy often supports expansive executive powers, please remember Justice Scalia’s warning against limitless legal arguments: “Fun’s fun, but you can’t die laughing.”

This article was written by a Charter Member of the Society for the Rule of Law. The views expressed are solely those of the author and do not necessarily reflect the views of the Society, the Institute, or its leadership.