Trump Doesn’t Have Unchecked “Plenary” Powers—So Why Did Stephen Miller Say It?

A basic strategy of the Trump era has been saying the quiet part out loud. Nowhere is this more apparent than in a determination to defy the law when it comes to deploying the military in American cities. The White House has responded to protests in Los Angeles, Portland, and Chicago by attempting to federalize and deploy the National Guard, a brazen dismissal of precedent and procedure in the name of “security and safety.” Judges initially disagreed, noting that the circumstances required for such an intervention—namely, invasion, rebellion, or the president’s inability to enforce the law “with the regular forces” at his disposal—had not been met.

Yet judicial pushback was dismissed outright in many quarters. Judges who cited the law when ruling against the deployment of the National Guard—arguing it infringes on state and local sovereignty—were labelled “corrupt.” Elon Musk and others demanded the firing or impeachment of judges who dared to challenge the administration’s agenda. Pundits have fueled disregard for the law by calling for non-compliance with judicial restraint. Citizens who have gathered to protest ICE raids are deemed to be the “enemy within” and “domestic terrorists,” categorized as threats to safety and security on the streets.

Recently, however, words twisting the law yielded to a telling moment of quiet. During a CNN interview, White House Deputy Chief of Staff Stephen Miller paused for a beat in an interview about the powers of the president to deploy troops in American cities. Anchor Boris Sanchez had just asked Miller whether the administration would adhere to federal judge Karin Immergut’s issuing of a temporary restraining order barring the deployment of the California National Guard to Oregon. “This is a nation of Constitutional law, not martial law,” the judge had written. The government’s arguments, she wrote, “risk blurring the line between civil and military federal power—to the detriment of this nation.” That line may have already begun to blur: More recently, an Oregon appeals court overturned the temporary restraining order, effectively clearing the way for the Trump administration’s deployment of federal forces into Portland.

Unmoved by Immergut’s earlier warning, Miller professed a different understanding of the law. He replied to Sanchez by invoking Title 10, the code that governs the U.S. military. The president, he said, has “plenary authority”—in other words, absolute power to take action on a particular issue—to address the protests as he sees fit. Checks and balances, in other words, did not apply to the president’s actions. And then Miller paused, mid-sentence.

“The administration—and Miller himself—has shown little regard for legal constraints as part of their anti-immigration campaign.”

Unexplained but later referred to as a communications glitch, this abrupt freeze invites speculation. Was Miller grappling with something more than a technical difficulty? Perhaps he was internally reviewing his knowledge of the law. Title 10 does not use the phrase “plenary authority,” nor does it give the president unfettered powers to deploy the military on domestic soil. Or perhaps Miller was recalling the text of the Posse Comitatus Act—originally a mere 52 words, passed by Congress in 1878—which explicitly forbids the deployment of troops on domestic soil unless specifically authorized by Congress, or when the president deems it necessary, as part of his Article II powers, to quell a rebellion or an invasion.

The administration—and Miller himself—has shown little regard for legal constraints as part of their anti-immigration campaign. Rounding up legal immigrants, separating families, and deporting individuals to foreign prisons—all extraordinary violations of due process—lead to the conclusion that, for some, the law is more of an obstacle to circumvent than a guidepost for decisions made at the White House. As one sign of a broader disregard for legal reasoning, the administration has reportedly avoided asking for legal advice from the very department set up for the purpose of legally vetting proposed executive branch policies, the Department of Justice’s Office of Legal Counsel.

Four days after Miller’s claim of the president’s plenary authority, federal judge April Perry issued a temporary restraining order blocking the deployment of federal troops in Chicago, rebuking the related claims of broad presidential powers. Perry addressed the overlap between the civilian-military divide and the power struggle between the White House and the courts. She underscored a critical legal distinction between the president’s admittedly broad powers when it comes to foreign affairs and his more limited powers at home. When it comes to matters of foreign relations, Perry conceded, “the president’s decisions are largely immune from judicial review.” However, the situation on the streets of Chicago is a state matter and as such “a matter of federalism routinely arbitrated by the courts.”

Perry’s ruling also delivered clarity on the concrete danger to safety and security that the presence of the troops on city streets could lead to. The presence of the ICE agents had caused civil unrest, taxing the resources of local and state law enforcement. “The diversion of limited state and local resources” constitutes “an irreparable harm,” she determined. Best not to add the federal troops to the mix.

“Perhaps saying the quiet part out loud jolted the legal system, at least for a moment, into action.”

Her words had an impact. A day later, although the appellate court ruled that the National Guard could remain under federal control at an army base about an hour outside of Chicago, it nevertheless agreed with the lower court judge that the troops were not to be deployed to the streets of Chicago.

We may never know what led to Miller’s sudden pause. But when he resumed the interview, Miller didn’t return to where he left off—the phrase “plenary authority” vanished as abruptly as it had appeared. And perhaps saying the quiet part out loud jolted the legal system, at least for a moment, into action.

Until the appellate court ruling this week that lifted the temporary restraining order in Portland, the courts appeared to be holding the line; with the latest ruling, the fragile architecture of state and local civilian authority seemed to wither away even further. Yet there is still hope that the rule of law can find a way forward when it comes to the deployments. On Wednesday, the 9th U.S. Circuit Court of Appeals heard arguments on the president’s deployment of federal troops in Los Angeles. Listening to arguments citing the Posse Comitatus Act, the three-judge panel appeared to be “skeptical” of the claim that the president had the kind of plenary powers that Miller had claimed.

The back and forth of judicial decisions on the troop deployments is far from over. But the final resolution, when it comes, will in fact pick up where Miller, in his pause, left off.