Trump and Sen. Tom Cotton want to use active-duty military troops to put down civil unrest. Here’s what legal experts have to say
04 June 2020
Sen. Tom Cotton of Arkansas sounded a lot more like Chile’s Gen. Augusto Pinochet or Paraguay’s President Alfredo Stroessner than a United States senator when, in a New York Times op-ed published on June 3, he called for President Donald Trump to invoke the Insurrection Act of 1807 and use U.S. Army troops against U.S. citizens in response to the civil unrest that has rocked American cities following the May 25 killing of George Floyd in Minneapolis. In his op-ed (which was headlined “Send in the Military” and is being lambasted by Times staffers and civil libertarians), Cotton used textbook authoritarian arguments while asserting that dramatic steps must be taken in order to restore law and order — and the use of local law enforcement and National Guard forces, Cotton insisted, is not enough. But could the Insurrection Act of 1807 be used in the way Trump and Cotton have recommended? Scott R. Anderson and Michel Paradis, in an article for Lawfare, discuss that 213-year-old law and how it might be used — or not used — in response to the current unrest in U.S. cities.
“The only actual deployment of active-duty service members confirmed by the Pentagon appears to be a contingent of around 250 members from military police and engineering units being stationed in the national capital area,” Anderson and Paradis explain. “Trump’s decision to deploy these service members — and his threat to deploy more of them — raises a complicated set of legal questions.”
To understand the Insurrection Act of 1807, one also needs some understanding of a law that Congress passed 71 years later: the Posse Comitatus Act of 1878.
“For more than a century,” Anderson and Paradis write, “statutory restrictions on posse comitatus — a Latin phrase referring to the use of private parties to enforce the law — have limited the extent to which the military may be used for the sorts of law enforcement purposes Trump has identified. Congress, however, has installed a number of exceptions to posse comitatus that allow the military to provide various types of indirect support to law enforcement. It has also chosen not to extend these restrictions to members of the National Guard when acting under state authority, allowing them to engage in various law enforcement activities.”
The Lawfare writers go on to explain, “If he wanted to make good on his threat to use the military to enforce the law and suppress civil unrest elsewhere in the country, Trump would almost certainly have to invoke the much broader exception to posse comitatus restrictions provided by the Insurrection Act — a controversial move that has historically been reserved for extreme exigencies. Even then, there may be reasons to doubt whether Trump has the legal authority to act, as the current state of civil unrest in the United States is a poor fit for what the Insurrection Act is designed to address.”
It’s important to stress that there is a major difference between governors using the National Guard in their states and a president using the Insurrection Act of 1807 in the way that Trump has been talking about. There have been many examples, past and present, of using the National Guard in U.S. cities during periods of civil unrest; for example, members of the Pennsylvania National Guard, under Democratic Gov. Tom Wolf, have appeared in the streets of Philadelphia this week in response to the violence, civil unrest and looting that Philly, like other U.S. cities, has suffered. Wolf and Philadelphia Mayor Jim Kenney, also a Democrat, are blistering critics of Trump — and the use of the Pennsylvania National Guard to protect historic monuments in Philly has nothing to do with the Insurrection Act of 1807. Nor is a similar use of National Guard forces in other states and cities.
In other words, one can applaud the arrival of the Pennsylvania National Guard in Philadelphia this week while asserting that what Trump and Cotton are recommending with the Insurrection Act is flat-out dangerous.
According to Anderson and Paradis, “The rules governing posse comitatus as applied to National Guard forces…. are different from those that apply to active-duty military personnel. Each state within the United States maintains its own National Guard as a vestige of the state militias that played a prominent role in the original constitutional vision of U.S. national defense. Whether posse comitatus restrictions apply to members of these National Guards depends under whose authority they are acting and in what capacity.”