The Lawfare Podcast · The Lawfare Institute

Lawfare Daily: The Military Domestic Deployment Legal Framework: Are the Laws Fit for Purpose?

March 26, 2026·52 min·4 clips

Chris Mirasola explains why the Posse Comitatus Act fails to stop domestic military deployments today.

This Lawfare Daily episode is the second in a series examining domestic military power in a democracy. Host Lauren Voss is joined by retired Major General Linda Singh, former Adjutant General of Maryland, and Professor Chris Mirasola of the University of Houston Law Center. The discussion opens with context: the U.S. military has been deployed domestically with increasing frequency, including National Guard deployments to Los Angeles, Washington D.C., Portland, Chicago, Memphis, and New Orleans. The administration has used a previously obscure provision, Title 10 Section 12406, and created expansive national defense areas exceeding 400 square miles where the military can arrest border crossers. Mirasola explains the Posse Comitatus Act of 1878, which criminalizes using active-duty military for domestic law enforcement but contains an exception for express statutory provisions. He notes the number of statutory exceptions has ballooned over the decades, from the Insurrection Act to provisions covering quarantines, timber protection, and more. He characterizes the PCA as meaningful primarily when an administration buys into civil-military norms, and less so when an administration is motivated to find workarounds. Singh provides the operational perspective: on paper, the line between support and law enforcement is clear, but on the ground it blurs within seconds. She describes how verbal briefings to troops contradicted written guidance in the Newsom case, where a judge ultimately found a PCA violation. She emphasizes that when law enforcement agencies themselves lack clarity, confusion cascades to the military personnel supporting them. The evolution of National Guard missions over the past 45 years is traced from traditional warfighting and disaster response to COVID logistics, cyber operations, border missions, and infrastructure protection. Singh argues the nation has expanded its expectations of what the military can do, turning it into an easy button when civilian agencies fall short. Mirasola identifies three categories of legal authority expansion: scaling up existing authorities (border operations), novel interpretations of mobilization statutes (Section 12406 and Section 502F of Title 32), and invoking obscure PCA exceptions like the fentanyl-as-WMD executive order. He explains that Section 502F, traditionally just a mobilization mechanism for training, is now being argued as a source of positive authority for any mission, with no textual limitations on what missions qualify. The practical implications are discussed in three buckets: erosion of public trust in the military, shifting public expectations toward military solutions for civilian problems, and bureaucratic path dependency within federal agencies that come to rely on military support. Singh offers detailed operational advice for commanders facing domestic missions: insist on mission clarity, keep legal counsel and public affairs at your side constantly, communicate down to the individual soldier level, protect public trust through visible community engagement, and emphasize restraint over escalation. She illustrates with her Baltimore experience, where she ensured National Guard troops stood visibly alongside law enforcement and redirected community goodwill toward police partners. Both guests warn about watching for deployments around elections as a red flag, and Mirasola suggests executive orders often telegraph future military uses months in advance.

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