“After a week of both peaceful protests and
violent chaos in the wake of George Floyd’s death, President Donald Trump announced, ‘If a city or state refuses to
take the actions that are necessary to defend the life and property of their
residents, then I will deploy the United States military and quickly solve the
problem for them.’
“Is Trump’s warning just bluster? Does the
president have the authority to send the military into American cities? The
answer to this question involves a web of legal provisions that help define the
president’s constitutional roles as commander in chief and chief executive of
the country and that simultaneously try to balance presidential power with the
power of state leaders.
‘Protect states in times of violence’
“Tracing back to the Magna Carta, the British
charter of liberty signed in 1215, there is a longstanding
tradition against military involvement in civilian affairs.
However, the U.S. Constitution guarantees that the national government will
protect the states in times of violence and permits Congress to enact laws that
enable the military to aid in carrying out the law.
Almost immediately after the Constitution’s
enactment in 1787, Congress passed a law that allowed the president to use the
military to respond to a series of citizen rebellions. Troops serving as what’s
called ‘posse comitatus,’ which translates roughly to ‘attendants with the capacity
to act,’ could be called to suppress insurrections and help carry out federal
laws. Following the Civil War, the national government used troops in this
capacity to aid in Reconstruction efforts,
particularly in states that had been part of the Confederacy.
“The use of troops in this manner may
even have influenced the outcome of the 1876 presidential
election of Republican Rutherford B. Hayes. That happened when, in return for
agreeing to withdraw federal troops from the South, Democrats informally agreed
to the election of Hayes when the disputed election was
thrown to a congressional commission. Two years later, Hayes signed into law
the Posse Comitatus Act, which prohibited the use of the military in civilian
matters.
“The Posse Comitatus Act has not changed much
since that time. The law prohibits the use of the
military in civilian matters but, over time, Congress has passed at least 26
exemptions to the act that allow the president to send troops into
states. The exemptions range
from providing military personnel to protect national parks to helping states
in carrying out state quarantine and health laws.
Insurrection Act
“What exemption would President Trump use if
he wants to send the military to one or more states? He would likely rely on
the Insurrection Act, which governs certain
circumstances when the president can use the military. Signed by Thomas
Jefferson in 1807, Congress originally passed the law in order to help fight
citizen rebellions against federal taxes.
“Over time, the law has evolved to allow the
use of troops in other circumstances. For example, Presidents Eisenhower,
Kennedy and Johnson used the Insurrection Act in the 1950s and 1960s to send
the military to enforce court desegregation orders and to protect
civil rights marchers. It was last invoked by President George H.W. Bush in 1992,
when he ordered 4,500 troops to Los Angeles after rioting erupted in response
to the acquittal of police officers charged with beating Rodney King.
“The Insurrection Act says that the president
may use the armed forces to subdue an insurrection or rebellion and take such
measures as he considers necessary to suppress violence. But before doing so,
he must issue a proclamation ordering insurgents to disperse and return to
their homes.
“While state governors and legislatures also
have the legal authority to ask the president to use troops in this
manner, none have done that during this period
of unrest. The states have preferred to rely on a combination of local law
enforcement and the National Guard, which is under state command, not federal.
“Not only does this strategy enable governors
to maintain authority over their states’ responses to the clashes in the wake
of George Floyd’s death, but it also keeps things more straightforward legally
and politically.
Authority uncertain
“Reliance on the Insurrection Act raises
a host of political and practical questions about who is
in charge when the military sends troops into a state. For example,
despite the fact that the act was invoked in response to the Rodney King riots,
the military actually was not used as directed. The Joint Task Force
Commander in control of the mission appears to have been confused regarding how
the Insurrection Act worked alongside the provisions of the Posse Comitatus
Act. He issued an order prohibiting troops from directly supporting law
enforcement and that led to numerous denials of requests for
assistance.
“Questions about the federal government’s
authority in the wake of the 2005 Hurricane Katrina in Louisiana raised similar
concerns. The administration of President George W. Bush determined that it had
authority under the Insurrection Act to send federal troops to the area,
despite the fact that Louisiana’s governor was opposed to military assistance.
“For political reasons, President Bush did not
end up deploying troops but, in 2006, Congress amended the law to address concerns
that the military was unable to provide effective assistance to states in
emergency situations. The amendment was later repealed when all 50 state governors raised
objections to what they perceived as a grant of unilateral power to the
president.
“These examples suggest a real difficulty
balancing governmental responses to domestic crises. States need the
flexibility and authority to respond as they see fit to the needs of their
citizens. But the federal government can and often does serve as a supplemental
resource. As the events of the past week illustrate, striking an effective
balance is rarely a straightforward thing” ("Can the president really order
the military to occupy U.S. cities and states?" by
Jennifer Selin, Professor of Constitutional Democracy at the University of
Missouri-Columbia, The Conversation).
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