Main Justice: The Militarization of American Cities Under Trump

Podcast: Main Justice
Host: Chris Hayes (filling in)
Featured Guest: Mary McCord, Executive Director, Institute for Constitutional Advocacy and Protection; Visiting Professor of Law, Georgetown University; former Acting Assistant Attorney General for National Security
Date: October 20, 2025

Episode Overview

This episode tackles the growing and controversial use of the U.S. military within American cities under President Trump’s second administration. With recent moves to federalize National Guard units over state objections, deployments of Marines for domestic operations, and rhetoric about fighting a “war within,” host Chris Hayes and legal expert Mary McCord analyze the legal, historical, and constitutional framework restraining—or failing to restrain—military intervention in civil law enforcement. The conversation covers why these developments are alarming, what laws govern them, the creative but dangerous legal justifications the administration is using, and the precedent these actions may set.

Key Discussion Points & Insights

1. Why Militarization Is Alarming

• Chris Hayes frames the moment ([01:40]): Federal troops and National Guard units are being used or eyed for deployment in U.S. cities, often over the objection of governors, raising deep questions about legality, morality, and the identity of America as a free society.
  • “There is a very clear desire and attempt to use military force against U.S. citizens… I wouldn’t say there’s very complicated questions about whether they can do that in the broadest sense of the spirit of what the country is.” – Chris Hayes [02:50]

2. Founders’ Fear: The Historical Backdrop

• Why the Founders opposed a standing army for domestic concerns ([05:16 – 09:22]):
  • The “militia” system evolved into today’s National Guard. The line between military and civilian law enforcement was meant to be clear.
  • Quote: “This country has a long-standing and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. This historic tradition boils down to a simple proposition: This is a nation of constitutional law, not martial law.” – Quoting Judge Immergut, as shared by Mary McCord [08:32]

3. Posse Comitatus Act & Insurrection Act – The Legal Pillars

• Posse Comitatus Act ([10:25 – 14:56]):
  • Prohibits the use of the U.S. Army (and, by extension, Air Force, National Guard under federalization) in domestic law enforcement, unless explicitly authorized.
  • Rationale: The military’s role is fundamentally incompatible with policing; they are trained and equipped for combat, not community control.
  • Notable: The Coast Guard is an exception with its own law enforcement powers.
  • “It’s fundamentally against the grain of what our whole system has built into constitution and statute for the last 250 years. It’s also just not safe.” – Mary McCord [12:38]
• Insurrection Act ([15:38 – 18:08]):
  • Provides statutory loopholes for use of military domestically, generally only upon request of a state’s governor (except in rare cases, like enforcing civil rights).
  • Most uses historically are with governor consent (e.g., LA riots 1992, school desegregation in Little Rock).

4. How These Statutes Are Being Pushed—Or Circumvented

• Current Trump Administration Tactics ([18:08 – 36:59])

  • Despite the high bar set by statutes and tradition, Trump and allies repeatedly search for technical and legal workarounds:

    • Creative uses of rarely-employed statutes (such as Title 10, section 12406)
    • Citing OLC (Office of Legal Counsel) memos rather than settled law
    • Attempting to federalize or deploy state National Guard forces against governors’ wishes
    • Threatening states to either send their own troops to enforce federal will or face federalization of those troops
    • Using Title 32 status, which pays states to deploy their National Guard for federal purposes while technically keeping them under gubernatorial control

  • Quote: “It was a novel use of that part of the code...historically, it just hasn’t happened.” – Mary McCord on the deployment of National Guard via Title 10, section 12406 [26:29]

  • The “try every door” approach:

    • “Someone once described the January 6th plot like a person walking down the entire hallway of a hotel and just trying every door to see if any of them were open and unlocked, locked. And that's kind of the way they go about everything.” – Chris Hayes [29:30]

  • Judges and courts are playing a more active role in reviewing, restraining, and sharply critiquing these efforts, but appeals and higher court dynamics remain uncertain.

  • On the federal government trying to evade judicial injunctions:

    • “She has an emergency hearing and she's like, how stupid do you think I am? ...Stop the games.” – Chris Hayes paraphrasing Judge Immergut’s reaction to evasive DOJ tactics [33:31]

  • McCord: “It's embarrassing. As a former federal government Department of Justice employee… Okay, you know, stop the games.” [34:07]

5. National Guard Legal Status – A Loophole for States That Cooperate

• Title 32 Status ([36:00 – 38:41]):
  • Allows governors to volunteer their National Guard for federal ends, remaining outside Posse Comitatus restrictions and with federal funding.
  • Convenient for friendly (often red state) governors:
    • “They don't have to pay for it.” – McCord [36:58]
  • Raises concerns if used as a vehicle for interstate conflict or for “inviting” federal action not truly needed for law or order.

6. Military Strikes in the Caribbean – Extending ‘Domestic’ Military Use Beyond Borders

• New legal theory: U.S. is in an “armed conflict” with narco-terrorists ([48:21 – 55:15]):
  • U.S. military launching lethal strikes against suspected cartel boats in the Caribbean, justified by label of “armed conflict” with narco-terrorists.
  • No Congressional authorization, and dubious intelligence/fact patterns.
  • Slides toward the same logic that could justify deadly force domestically.
  • “If you can do that in the high seas...what would stop you from doing it in Boston or Washington D.C. or Chicago?” – Mary McCord [50:48]
  • “I think just killing people on boats that are, even if they are smuggling drugs...is just murder.” – Chris Hayes [48:10]

7. Presumption of Good Faith in National Security – Is It Over?

• Courts historically defer to executive branch on national security, but firing of experts and disregard for professional intelligence erode the rationale for such deference:
  • “Maybe the time for that deference is over.” – Mary McCord, discussing her new essay on withdrawing judicial deference to national security claims [55:22]

8. Criminal Liability and Presidential Immunity—Military Chain of Command in the Crosshairs

• Discussion of recent Roberts Supreme Court decision on Trump v. U.S. and its implications for criminal acts committed under official orders ([57:06 – 61:20]):
  • Raises the specter of a president being immune while subordinates (military or civilian) are criminally liable for carrying out potentially unlawful orders.
  • “I think there is a plausible claim that homicide was committed against the individuals on those boats… That now we've got a situation in which the President cannot be prosecuted for that, but presumably everyone in the chain of command is legally exposed.” – Chris Hayes [59:32]
  • McCord notes that military officers are obligated not to follow illegal orders, but with legal advisors purged, their ability to discern legality is compromised.

Notable Quotes & Memorable Moments (with Timestamps)

• On the core tradition:

  • “This is a nation of constitutional law, not martial law.” – Judge Immergut, read by Mary McCord [08:32]

• On the role of the military:

  • “Our armed forces...are trained to go into combat against a foreign enemy and use lethal force... Their rules of engagement are completely different than the rules of engagement of domestic law enforcement...” – Mary McCord [12:38]

• On rule-bending legal rationales:

  • “That is the way they lawyer, you know...try this, try that, try, try that door. ...That is the way they tried January 6, they just tried stuff.” – Chris Hayes [29:30]

• On court resistance:

  • “[The judge] basically gave the federal government a tongue lashing and then issued a second TRO. It was wild.” – Chris Hayes [33:28]
  • “It's embarrassing. As a former federal government Department of Justice employee...” – Mary McCord [34:07]

• On the new “armed conflict” theory:

  • “If you can do that in the high seas...what would stop you from doing it in Boston or Washington D.C. or Chicago?” – Mary McCord [50:48]

• On presumption of regularity:

  • “There's a presumption of regularity and a presumption of good faith of the pronouncements of the government that just cannot be extended here... maybe the time for that deference is over.” – Chris Hayes and Mary McCord [55:14 – 55:22]

• On immunity and chain of command risk:

  • “Now we've got a situation in which the President cannot be prosecuted for that, but presumably everyone in the chain of command is legally exposed. And that's a hell of a thing...” – Chris Hayes [59:32]

Important Segment Timestamps

• 01:40 – Chris Hayes lays out the current militarization scenario and why it alarms him
• 05:16 – 09:22 – Mary McCord discusses the Founders’ thinking, constitutional design, and historic legal constraints on military use
• 10:25 – 14:56 – Posse Comitatus and Insurrection Acts, basics and history
• 18:08 – 21:52 – Trump admin rhetoric and drive for “war within” using military domestically
• 25:02 – 29:16 – Recent cases: LA and Portland legal challenges, creative deployment of statutes, court decisions
• 36:00 – 38:41 – Title 32 National Guard status as a voluntary loophole for states
• 48:21 – 51:30 – Naval strikes against “narco-terrorists;” legal justification and moral/constitutional dangers
• 57:06 – 61:20 – Supreme Court immunity, risk to military chain of command, and hazards of unchecked presidential power

Tone & Takeaways

The discussion is urgent, forthright, and often darkly humorous or incredulous at the legal twists and governmental behavior on display. McCord’s detailed legal analysis is careful but blunt; Hayes is impassioned, worried, and frank. Both make clear that the distinctions between military and civil power—central to American freedom and rule of law—are under active assault. The evolving legal tactics of the Trump administration, the courts’ teetering responses, and the wholesale disregard for constitutional traditions are painted not just as legal debates but existential threats to American democracy.

Final note:
Mary McCord expresses guarded hope in the professionalism and judgment of military leaders but is deeply troubled by current events and by the administration’s willingness to push, blur, or erase longstanding legal and constitutional barriers to military policing and draconian executive power.

For more detailed legal resources on these topics:

• 10 U.S.C. §§ 251–255 (Insurrection Act and related federalization authorities)
• 18 U.S.C. § 1385 (Posse Comitatus Act)