Legal Experts: Trump Does Have Power To Deploy Military Domestically, But Only Under Certain Conditions
President Donald Trump’s warning that he would deploy the United States military to any state that refuses to take aggressive action against rioting rests on a longstanding presidential power that gives wide latitude to the White House, legal experts said.
But a decision to do so would likely be met with legal opposition and strong opposition from governors.
“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,” Trump said during a Rose Garden address as cities across the country faced property destruction, looting and violent police clashes in the week since the death of George Floyd in Minneapolis.
Legal experts say the president does indeed have the authority under the Insurrection Act of 1807 to dispatch the military in states that are unable to put down an insurrection or are defying federal law. No state has yet met that criteria.
In the last half-century, presidents have sent the military to Southern states to ensure desegregation of schools and to protect civil rights in the 1950s and 1960s, and to Los Angeles after the California governor sought federal help during the 1992 riots.
Even so, the president’s comments set up an immediate conflict with officials in some states, who disputed that the president had unilateral authority to send in troops against their will.
“The President of the United States is not a dictator, and President Trump does not and will not dominate New York state,” New York Attorney General Letitia James, a Democrat, said in a statement Monday, adding that the state was prepared to go to court if need be.
New York has been hit particularly hard by rioters, with widespread looting in New York City and police officers hit by a vehicle in Buffalo.
A leading Democratic voice on national security, Michèle Flournoy, who is a former top Pentagon policy official, said Tuesday that Trump should avoid using active-duty military forces except as a last resort.
“Most presidents, previous presidents, have understood the extreme sensitivity of using the U.S. military against American citizens or in confronting American citizens,” Flournoy said at an online forum hosted by the Center for Strategic and International Studies.
Regarding the prospect of Trump invoking the Insurrection Act, she said, “He does have the authority. It’s there for a reason. But if he manages this well, and if governors and mayors manage this well and use all the resources at their disposal, including the National Guard called up in a state capacity, it shouldn’t be necessary.”
Under the law, Trump would first have to proclaim that the insurgents disperse and retire peaceably within a certain amount of time.
He could activate federal troops during an emergency without a governor’s request as long as specific conditions are met, such as if the violence is interfering with the execution of laws in that state.
Stephen Vladeck, a national security and constitutional law expert at the University of Texas at Austin, said on Twitter that the federal government does not necessarily need a state request before using troops for domestic law enforcement, and that the Insurrection Act is open-ended in letting the president decide when circumstances merited its use.
He said the Insurrection Act had not been used since 1992, partly because of the unpopularity of using troops for domestic purposes.
5b. And it’s hard to imagine courts second-guessing factual determinations by the President that circumstances warrant use of the military to restore order.
Instead, the real constraint today might be *responsibility*; if Trump invokes these statutes, he’d own all that follows.
— Steve Vladeck (@steve_vladeck) May 30, 2020
“And it’s hard to imagine courts second-guessing factual determinations by the President that circumstances warrant use of the military to restore order,” Vladeck wrote. “Instead, the real constraint today might be responsibility; if Trump invokes these statutes, he’d own all that follows.”
The Western Journal has reviewed this Associated Press story and may have altered it prior to publication to ensure that it meets our editorial standards.
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