Can President Trump Really Order Troops Into Cities?
By Jeffrey Toobin, The New Yorker
02 June 20
In his speech in the Rose Garden on Monday evening, President Trump said,
"If the 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." Can he do
that? Can the President send the U.S. military into a state, even when the
governor of that state doesn't ask for its assistance, or even if the
governor actively opposes such a step?
The answer is no, probably. The reasons relate to a venerable principle in
American law: that the military should stay away from actions on domestic
soil. One of the founding principles of the Republic was that the federal
military should not be involved in domestic law enforcement. But, over the
years, the law has carved out certain narrow exceptions to that rule,
notably in the form of the Insurrection Act, from 1807. This law says that
"whenever there is an insurrection in any state against its government, the
President may, upon the request of its legislature or its governor," call in
the armed forces. So that seems pretty simple. The President can bring in
the military only if a governor or a state requests it. In recent years, the
law has been invoked only when governors have requested the assistance of
federal troops, such as in 1992, when California sought help in quelling the
rioting after the acquittals in the Rodney King case. (Similarly, in 1967,
Governor George Romney, of Michigan, requested federal troops to control
riots in Detroit.) Now, however, the governors of California, Illinois, and
Michigan have all made it clear that they will not seek the involvement of
federal troops in their efforts to handle disturbances in their states.
But that's not the end of the story. There is another provision of the
Insurrection Act that arguably gives the President greater unilateral
authority. This provision states that, when the President determines that
there are unlawful activities which "make it impracticable to enforce the
laws of the United States," he may call in the armed forces. It was passed
in 1956, in order to give Presidents the authority to enforce civil-rights
laws. President Eisenhower invoked it to send Army troops to enforce the
integration of the public schools in Little Rock, Arkansas, in 1957. It's
unclear whether the law, which was based on the protection of constitutional
rights, would give Trump the authority he wants to overrule governors today.
In other words, there appears to be some ambiguity about the President's
authority to do what he promised to do. It may be, of course, that Trump
merely wanted to threaten the use of the military without ever intending to
follow through. On Monday, the President was governing by spectacle-ordering
the clearing of peaceful protesters so that he could stage a photo
opportunity with a Bible at a nearby church. The threat to send troops was a
similarly showy gesture. Trump was trying to look tougher than the
governors, but he didn't take any actual responsibility for bringing calm to
the country. If he were to send troops, the burden would be on him to show
results.
In all likelihood, then, there will not be the clashes that the President's
remarks portend. He will not send troops into a state that doesn't want
them. But, in threatening to do so, Trump has shredded another norm. He has
abused his power in yet another way, extending his legacy of lawlessness and
authoritarianism, with more such abuses likely in the months to come.
