By Eric Vandenbroeck and co-workers

One reason Americans like their military so much is that they don’t have to fear it. George Washington established this precedent, demonstrating moderation and deference to the law in responding to a real armed insurrection. For the next two centuries, presidents have only deployed the military legally and infrequently. Congress now has to make sure that the public can still trust the president and the military to follow Washington’s example. Since 1878, it has been illegal for the American military to be used for domestic policing. Legislation known as the Posse Comitatus Act restricts domestic employment of the active-duty military to Congressionally or Constitutionally authorized circumstances, or when the president formally declares an invasion or insurrection to be occurring.

National Guard troops, though, can be used for domestic policing, either under the authority of governors or with congressional or gubernatorial consent for federal missions. In rare cases, they can be called into federal service without the consent of a state’s governor, specifically when state officials are preventing the enactment of federal law. President Dwight D. Eisenhower used this authority to federalize the Arkansas National Guard in 1957 to enforce the Supreme Court’s decision in Brown v. Board of Education, and deployed active-duty troops alongside them to protect Black students. Presidents John F. Kennedy and Lyndon B. Johnson both used the same authority to protect civil rights activists.

If the president does invoke the Insurrection Act, he then possesses nearly unlimited authorities to restore order. The only real restraints here are political. Yet political pressure can be powerful. It proved sufficient to prevent President Donald Trump from invoking the Insurrection Act to deploy troops during his first term, when then-Defense Secretary Mark Esper consulted with governors and gave a press conference opposing the move.

Today, however, the president has deployed 700 U.S. Marines to Los Angeles absent clear legal authority. Trump has not yet invoked the act, although he appears to be setting conditions to do so. He has described protesters as “violent, insurrectionist mobs” and threatened to arrest the governor of California. These are not the behaviors of leaders attempting to defuse a dangerous situation.

The United States has faced real insurrections in its history. In 1791, a populist uprising began against federal tax collectors that evolved into an organized military insurgency. Called the Whiskey Rebellion, it involved several thousand people seeking to liberate territory west of the Allegheny Mountains from federal control. In response, Washington deputized prominent local peace commissioners to negotiate with rebels, encouraged governors in the affected states to enforce compliance, and issued a presidential proclamation explaining the issues and exhorting compliance.

Washington strictly complied with the Militia Act, which required a Supreme Court justice to certify that a state of rebellion existed before the president could call militia into federal service. He received that certification on Aug. 4, 1794. He issued another proclamation condemning the violence and outlining the legal basis for his militia call-ups from Pennsylvania, Virginia, Maryland, and New Jersey—a larger force than Washington had commanded at Yorktown during the Revolutionary War. Washington rode with the troops. Insurrectionists didn’t confront Washington’s army. Instead, citizens signed loyalty oaths, arrests were made without incident, and rebels were tried, then either acquitted or pardoned by Washington. The president’s policy garnered widespread public approval.

Suffice it to say, Trump has not grounded the president’s authority as clearly as Washington did. The Pentagon is being willfully obtuse about the legal basis for active-duty deployments, saying only that they are authorized under executive authority. The White House statement indicates the administration is attempting to assert a novel and expansive interpretation of the Constitution’s “Take Care” clause by claiming that it empowers the chief executive to protect federal properties and execution of the laws. This is where Defense Secretary Pete Hegseth’s firing of several of the military’s leading judge advocates general is significant: The administration wants a more permissive interpretation of the law.

Both the White House and the military leadership are willfully blurring the line between restrictions on active-duty forces and the greater latitude the law allows for National Guard use. In describing the deployment of Marines to Los Angeles, U.S. Northern Command said the troops would “seamlessly integrate with the Title 10 forces.” Even under the Administration’s expansive interpretation of the Take Care clause this leaves their mission restricted to protecting federal facilities and agents even as it enables their use over the objections of state officials.

Trump has admitted that the protests were “very well under control.” This is further proof of the administration’s bad faith in seeking to intimidate protesters by threatening them with military force.

As part of its constitutional authority over the military, Congress should now act to increase the political pressure constraining the president. Legislators can press military leaders—including the chairman of the Joint Chiefs of Staff and the National Guard leader in the Joint Chiefs—to tell the public what advice they gave the White House about deploying military force in Los Angeles. Trump, in turn, should rescind the use of active-duty troops for policing the protests. Their deployment is bad for morale, bad for recruiting, and bad for the relationship between the American public and the military.

 

 

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