Will the United States Use the Military for Police Action?

As protests for the murder of George Floyd continue, a sentiment seems to be growing around the country to utilize heightened police activity to quell protesters. Although people may have competing opinions on the morality of the measures taken, the country has undoubtedly raised its overall police presence in almost every city. As of yesterday, the National Guard has been activated in 23 states as well as D.C.. However, the National Guard is run by the states and has left the Federal Government looking in from the outside. President Trump however decided that he wanted to take control of the situation, he said to the governors: “If you don’t dominate your city and your state, they’re going to walk away with you,” and “In Washington we’re going to do something people haven’t seen before.” That comment prefaced what was to be one of the most shocking displays of force throughout the week of protests: the President utilized the United States military in police activity. Although President Trump was able to deploy the military in D.C., he has yet to do so in any other state. We begin to ask ourselves what powers the president actually wields to execute his plan to be "the President of law and order."

To examine his powers, we must first start with understanding why the United States does not use the military to police its citizens. A law called Posse Comitatus, written in 1878, prevents any use of military force to impose U.S. domestic law. The law was written in part to prevent and remove Union Troops occupying the former Confederate States of America after the Civil War. Posse Comitatus has stood for decades and prevented the Federal Government from intervening in several state issues.

Some however, remember instances where federal troops were deployed during certain crises. These included: the Rodney King Riots in L.A., the cleanup efforts of Hurricane Hugo and Katrina, and in Alabama and Arkansas after the certain schools refused to comply with desegregation. To complete the action of deploying federal troops, the president must utilize a large exception to Posse Comitatus called the Insurrection Act of 1807. This act allows federalized National Guard troops and active duty military personnel to impose domestic law on the citizens of the state. To enact this law, the Federal Government has to express a need to suppress either an insurrection, civil disorder, or a rebellion. The law also states, that the President must give a formal warning to the citizens of the state before he sends military personnel. To utilize the law, a certain set of circumstances must be met: either the President can call military action if requested by the state governor or legislature (section 10 U.S.C.(§ 251)), the President can call military action if an insurrection or rebellion makes it impossible to enforce domestic law (section 10 U.S.C(§ 252)), or the President can call military action if state law enforcement deprives citizens of their constitutionally protected rights (section 10 U.S.C(§ 253).) To date, none of the 50 states have requested military aid from the Federal Government.

That begs the question of how President Trump was able to authorize the use of the Insurrection Act in D.C.? The simple answer is: because D.C. is not a state. Although it has voting rights in the general election, it holds none of the powers of a traditional state. Due to the lack of statehood the Federal Government controls the protection of its citizens and budget (among other things,) making it unnecessary for D.C.'s request for military aid (section 10 U.S.C.(§ 251)) because the President and the Federal Government control almost all of D.C.'s functions. The Federal Government's ability to send in troops to states however, becomes more difficult.

As noted before, none of the 50 states have requested military aid from the Federal Government, therefore preventing President Trump from justifying sending federal troops through section 10 U.S.C.(§ 251.) The president is also unable to send troops to the states under section 10 U.S.C(§ 252,) because we have seen countless examples of local police utilizing riot gear, rubber bullets, and tear gas to effectively control protestors, showing that there is no insurrection hindering the execution of U.S. domestic law (note, the protestors would most likely be classified as the rebellious party in an attempt to justify sending federal troops.) The third and final section (10 U.S.C(§ 253)) becomes a bit more controversial. §253 says that: federal troops can be sent without a formal request from the state if that state is suppressing its citizen's constitutional rights. President Trump may argue that the governors and mayor's have "failed" to protect their citizens, therefore President Trump must protect each citizen's constitutional right to receive protection from harm. He would likely cite Article II, Section 2, Clause 4 of the Constitution stating that the president is the chief executive and must ensure that the citizens of the United States have a right to receive certain protections from harm by faithful execution of the law.

This argument might give President Trump the leeway to send Federal Troops into states, however it might not be strong enough to hold up in court. Historically when §253 was enacted, it was done after a Supreme Court ruling. These precedents are usually are extremely strong as they are deemed constitutional and concurrent to American values. Both Eisenhower and Kennedy utilized §253 by classifying Alabama's and Arkansas' resistance to integration of schools as a violation of the 14th Amendment's Equal Protection Clause which stated: All citizens were mandated equal protection under the law. Specifically they referenced Brown V. Board of Education to show that the states were stripping citizens of their constitutional rights. Although President Trump has Article II on his side, the Constitution is constantly debated and subjected to various scrutiny by judges. His opposition, the states, will attempt to protect their rights by citing the 10th Amendment. This amendment grants states certain rights not explicitly reserved for the Federal Government in the Constitution. They would argue that the president violated the 10th Amendment because the Federal Government imposed on the states' right to police their citizens, a right not explicitly given to the Federal Government.

The most important thing to consider with legal proceedings is that rarely there is a defined correct and incorrect answer. Often issues concerning laws exist in a gray area and the American Judicial System depends on the courts to define who is correct in any given situation. However, through studying history and the law, we can determine that the president would most likely be unable to utilize the military on the protestors due to the fact that he meets little to no requirements to enact the Insurrection Act. If the president were to activate the law, and he would encounter serious legal questions that would not only tear the country apart but also question his constitutional authority.

Citations:

Martinez, Jack. “Can Houses of Worship Re-Open?”Quaranteens: Teens', Wixsite, 23 May 2020, fionacsweet.wixsite.com/quaranteennews/post/can-houses-of-worship-re-open.

ABC News, ABC News Network, abcnews.go.com/US/locations-george-floyd-protests-curfews-national-guard-deployments/story?id=70997568.

“Angry Donald Trump Calls on Governors to 'Dominate' George Floyd Protests.”The Guardian, Guardian News and Media, 1 June 2020, www.theguardian.com/us-news/2020/jun/01/donald-trump-protests-george-floyd-dominate.

“Posse Comitatus Act.”Wikipedia, Wikimedia Foundation, 2 June 2020, en.wikipedia.org/wiki/Posse_Comitatus_Act.

Trevithick, Joseph. “This Is What The Insurrection Act Of 1807 Is And How Trump Could Try To Use It.”The Drive, 1 June 2020, www.thedrive.com/the-war-zone/33799/this-is-what-the-insurrection-act-of-1807-is-and-how-trump-could-try-to-use-it.

“Insurrection Act of 1807.”Wikipedia, Wikimedia Foundation, 3 June 2020, en.wikipedia.org/wiki/Insurrection_Act_of_1807.

“Article II: The Executive Branch.”National Constitution Center – Constitutioncenter.org, constitutioncenter.org/blog/article-ii-the-executive-branch.

“Equal Protection Clause.”Wikipedia, Wikimedia Foundation, 30 May 2020, en.wikipedia.org/wiki/Equal_Protection_Clause.

Berlin, Jonathon, and Kori Rumore. “12 Times the President Called in the Military Domestically.”Chicagotribune.com, Chicago Tribune, 1 June 2020, www.chicagotribune.com/news/ct-national-guard-deployments-timeline-htmlstory.html.