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Yes, Trump Can Legally Deploy Troops to Suppress Protests

Injecting military forces into a domestic crisis has the potential to make a bad situation worse. Under Trump, it could prove disastrous.

June 3, 2020

This piece origin­ally appeared in the Boston Globe. 

Pres­id­ent Trump has been hint­ing for days that he will deploy federal troops to suppress the protests that have erup­ted across the coun­try in response to the horrific death of George Floyd under the knee of a Minneapolis police officer. Monday, he took his threats from Twit­ter to the Rose Garden. “If a city or state refuses to take the actions that are neces­sary to defend the life and prop­erty of their resid­ents,” he warned, “then I will deploy the United States milit­ary and quickly solve the prob­lem.”

State offi­cials and media comment­at­ors reacted with alarm, accus­ing the pres­id­ent of over­reach. The response is under­stand­able. The domestic use of federal troops is deeply at odds with modern prac­tice and sens­ib­il­it­ies. It is easier to believe that this is just another instance of Trump laying claim to powers he does­n’t have.

This time, though, the law might be on his side. Over two centur­ies ago, Congress passed a stat­ute giving the pres­id­ent broad author­ity to deploy the milit­ary in response to civil unrest. The author­ity is rarely used, however — and for good reason. Even under the most respons­ible command, inject­ing milit­ary forces into a domestic crisis has the poten­tial to make a bad situ­ation worse. Under Trump, it could be disastrous.

The law, known as the Insur­rec­tion Act, dates back to 1807. Under its broad­est section, the pres­id­ent may deploy troops to suppress “any insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” if it impairs the execu­tion of state or federal law. He may do so with or without the request of a state’s governor, and he may deploy active duty armed forces or feder­al­ize the National Guard.

At first blush, the Insur­rec­tion Act might seem to contra­dict “posse comit­atus” — the prin­ciple that the milit­ary should not engage in domestic law enforce­ment. That prin­ciple is deeply embed­ded in our nation’s history. And yet it does not appear in the Consti­tu­tion. In fact, the Consti­tu­tion makes clear that Congress can author­ize the deploy­ment of the mili­tia “to execute the Laws of the Union, suppress Insur­rec­tions and repel Inva­sions.”

Even the Posse Comit­atus Act, passed by Congress in 1878, does not entirely bar milit­ary parti­cip­a­tion in law enforce­ment. It prohib­its such parti­cip­a­tion “except in cases and under circum­stances expressly author­ized by the Consti­tu­tion or Act of Congress.” The Insur­rec­tion Act provides that express author­iz­a­tion.

Despite its permissive­ness, the Insur­rec­tion Act has been used infre­quently in modern times. It was last invoked in 1992, when Pres­id­ent George H.W. Bush deployed armed forces at the request of Governor Pete Wilson of Cali­for­nia to help curb viol­ence that erup­ted in Los Angeles after the police beat­ing of Rodney King.

Why the reti­cence in using this law? Simply, Amer­ic­ans don’t like the idea of armored tanks rolling into their cities. It smacks of author­it­ari­an­ism; it goes against our values and our national self-concept. And so, even in cases where the Insur­rec­tion Act might provide a legal open­ing — for instance, in the chaotic after­math of Hurricane Katrina — the fear of polit­ical blow­back has been enough to stop pres­id­ents from exploit­ing it.

Moreover, using the milit­ary to suppress civil unrest can actu­ally escal­ate viol­ence. As badly as many police officers have behaved during the recent protests, they are at least nomin­ally tasked with protect­ing the communit­ies they serve. Milit­ary troops have no such mission or train­ing. Their goal is to take down the enemy, and the enemy rarely has consti­tu­tional rights. As one member of the Minnesota National Guard told a reporter, “We’re a combat unit not trained for riot control or safely hand­ling civil­ians in this context.”

In theory, the commander in chief could take steps to mitig­ate these inher­ent dangers. He could clearly and consist­ently commu­nic­ate — both to the troops and to the Amer­ican people — that the domestic mission is to protect, not to subdue. He could emphas­ize that we are not at war, and that milit­ary forces must scru­pu­lously honor the consti­tu­tional rights of every person with whom they come into contact.

Instead, Trump has openly reveled in the prospect of using force against the protest­ers. “When the loot­ing starts, the shoot­ing starts,” he tweeted. He also tweeted that any protester who breached the White House fence “would have been greeted with the most vicious dogs, and most omin­ous weapons, I have ever seen. That’s when people would have been really badly hurt, at least.” Far from want­ing to avoid viol­ent clashes with civil­ians, the pres­id­ent seems to be spoil­ing for one.

Of course, this could all prove to be more show than substance. The pres­id­ent has threatened many times to inter­vene in the states’ hand­ling of the coronavirus pandemic. Ulti­mately, he has opted to criti­cize certain (Demo­cratic) governors from the side­lines rather than assum­ing respons­ib­il­ity for the response — and, in turn, the outcomes — in those states. The same could well be true here. Cities burn­ing in states governed by Demo­crats make better fodder for Trump’s Twit­ter feed than cities burn­ing under his own command and control.

Nonethe­less, it would be a mistake to dismiss the pres­id­ent’s comments as mere bluster. The law gives him signi­fic­ant author­ity to carry through on his threats. If he does so, armed forces could become a domestic police force, captained by a pres­id­ent who has encour­aged police officers to be “rough” with suspects and who claims that Article II of the Consti­tu­tion “allows me to do whatever I want.” In a time already fraught with unpre­ced­en­ted dangers, it’s hard to imagine a more danger­ous state of affairs.