During his campaign in Iowa this year, Donald Trump asserted that he was unable to quell violence in predominantly Democratic states and towns and municipalities with the military during his presidency.
The leading candidate for the 2024 Republican presidential nomination referred to New York City and Chicago as “crime dens” and declared to his listeners, “The next time, I’m not waiting. One of the things I did was let them run it and we’re going to show how bad a job they do,” he said. “Well, we did that. We don’t have to wait any longer.”
Trump has yet to furnish an elaborate elucidation regarding his intended utilization of the military in the event of a re-election. Nevertheless, he and his advisers have both expressed that they would possess considerable latitude when it came to assembling military forces.
While employing the military internally would diverge from established norms, the former president has already expressed a resolute agenda should he be sworn in. This agenda includes travel restrictions and extensive deportations targeting Muslim-majority countries.
As per interviews with military and legal experts, a regulation that was originally established during the nascent phases of the country would afford Trump, in his capacity as the commander-in-chief, an almost unimpeded power to execute such measures.
The Insurrection Act confers upon presidents the authority to deploy active-duty or reserve military forces in response to civil unrest within their respective states, superseding any judicial scrutiny or challenge to this power. A minimal number of safeguards exist, which merely require the president to request the attendees to disperse.
“The principal constraint on the president’s use of the Insurrection Act is basically political, that presidents don’t want to be the guy who sent tanks rolling down Main Street,” stated Joseph Nunn, a national security specialist affiliated with the Brennan Center for Justice. “There’s not much really in the law to stay the president’s hand.”
Congress approved the act in 1792, precisely four years after the Constitution was ratified. Nunn posits that it is a composite of numerous statutes enacted during the intermission until the 1870s, a period characterized by limited municipal law enforcement presence.
“It is a law that in many ways was created for a country that doesn’t exist anymore,” he explained.
Rare exceptions exist to the Posse Comitatus Act, which prohibits the utilization of the military for law enforcement purposes; this is among the most consequential.
Trump has expressed in public his intentions regarding the deployment of the military to secure the border and provide assistance to cities plagued by elevated levels of violent crime, should he be elected president. Furthermore, his speculations have extended to the application of military force against international drug cartels. Several Republican primary candidates, including Florida Governor Ron DeSantis and former United Nations ambassador and South Carolina governor Nikki Haley, have expressed this view.
The aforementioned threats have instigated investigations regarding the importance of military commitments, the scope of presidential power, and the possible candidates that Trump might appoint to support his strategy.
President Trump has expressed his desire to rehire retired Army Lt. Gen. Michael Flynn, who was previously appointed as the national security adviser during his administration. Flynn, who had twice confessed to deceiving the FBI during their investigation into Russian interference, was pardoned by Trump thereafter. Flynn put forth a plan of action subsequent to the 2020 election in which Trump could seize authority over voting equipment and instruct the military in specific states to facilitate an election re-do.
Under the leadership of the newly appointed chairman of the Joint Chiefs of Staff, General Charles Q. Brown, the Pentagon would undoubtedly oppose any endeavors to implement the Insurrection Act and utilize the military for domestic law enforcement. Eight members of the Joint Chiefs, including himself, endorsed a memorandum that was directed towards military personnel in the aftermath of the January 6, 2021 attack on the United States Capitol. The document emphasized their sincere commitments and labeled the events that transpired that day, which sought to obstruct the verification of Democratic candidate Joe Biden’s victory over Trump, as demonstrations of “sedition and insurrection.”
Despite this, military veterans continue to provide substantial support for Trump and his party. A exhaustive survey of more than 94,000 voters nationwide, AP VoteCast, found that 59% of American military veterans supported Trump in the 2020 presidential election. 57% of military veterans cast their support in favor of Republican candidates in the 2022 midterm races.
As per Nunn’s findings, presidents have issued a cumulative total of forty proclamations that invoke the legislation, with certain occurrences involving the issuance of multiple proclamations in response to the same catastrophe. It was implemented by Lyndon Johnson on three separate occasions—in Chicago, Baltimore, and Washington—in response to the civil unrest that ensued in metropolitan regions after the 1968 assassination of Dr. Martin Luther King Jr.
Amidst the Civil Rights movement, Presidents Dwight Eisenhower, John F. Kennedy, and Lyndon B. Johnson implemented legal strategies to protect activists and pupils who were actively participating in the endeavor to desegregate schools. The 101st Airborne Division was assigned by Eisenhower to Little Rock, Arkansas, with the primary objective of protecting black pupils who were striving for integration at Central High School. As a consequence of the state governor’s deployment of the National Guard to obstruct the students’ access to the school, this course of action was implemented.
The final president to implement the Insurrection Act was George H.W. Bush. The legislation was a direct response to the 1992 rioting in Los Angeles that followed the acquittal of the white police officers implicated in the videotaped assault of Rodney King.
Persisting in utilizing the act throughout a prospective Trump administration could place military officials under duress, potentially subjecting them to consequences for their actions irrespective of whether they were executed in accordance with the president’s directives.