Kelly’s Illegal “Cabinet Order” Sets Dangerous Precedent

When President Donald Trump sent troops to the southern border it was not to protect the country from an invasion. It was to protect him and his party from losing everything in the midterm elections. When the troops were granted the right to use lethal force on the migrants, not only was the move politically motivated and illegal but the way it was done was equally disturbing.

The White House now says that the action was not pushed through with an Executive Order, as had been reported, but with a “Cabinet Order,” signed by Chief of Staff John Kelly. Before moving to what is wrong with telling the military they can use lethal force along the border, it is important to note a few things about the order itself.

First of all, there is no such thing as a “Cabinet Order.” If you look up Executive Order, you will find this definition: “The President of the United States manages the operations of the Executive branch of Government through Executive orders. After the President signs an Executive order, the White House sends it to the Office of the Federal Register (OFR).” Do the same thing with “Cabinet Order” and there is no definition (unless you are looking at the government of Japan). That is because, while this is being called a “Cabinet Order,” it was really just a memo with a fancy name.

While not a crucial point, it is worth noting that the White House Chief of Staff is a member of the Cabinet insofar as they can attend Cabinet meetings. They are not a full member because Senate confirmation is not needed. Sure, he had Trump behind him and the idea, it should scare us all when the president thinks he can farm out such high-level decisions to staff.

Why does this matter? First of all, there is a reason it is illegal for the military to take over actions normally handled by local law enforcement. The Posse Comitatus Act limited the ways the military can be used within the United States. This was mainly done because states were concerned that the federal government would try to use force against individual states, a fear that can be traced back to the start of the republic.

Where will Trump take this next?

Trump has made it clear that he sees no difference between his political goals and policies that promote and advance national security. Given how differently Trump reacted to crises in red states vs. blue states, new reporting showing he wanted to use the DoJ to prosecute Hillary Clinton and James Comey, and his tweet thanking Saudi Arabia, one has to wonder where he will go next. Will he send troops to California to stop their policies on global warming and sanctuary cities? Will he send exiled cleric, Fethullah Gulen, back to Turkey?

The problem is that there is no way to know. In this upside down that the world has become, this is probably not where this ends.