Trump hints at a greater role for the military within the US. An old law offers him few guardrails

(Andrew Harnik/Associated Press)

Trump hints at a greater role for the military within the US. An old law offers him few guardrails

Election 2024


November 28, 2023

During his campaign in Iowa this year, Donald Trump said he was prevented from using the military to quell violence in mostly Democratic cities and states during his presidency.

Calling New York


and the crime dens of Chicago, the frontrunner for the 2024 Republican presidential nomination, told his audience: Next time I won’t wait. One of the things I did was let them take charge and show them how bad they are doing, he said. Well, we did. We don’t have to wait any longer.

Trump has not spelled out exactly how he might deploy the military during a second term, though he and his advisers have suggested they would have wide latitude to call up units. While regularly deploying the military within the country’s borders would be a departure from tradition, the former president has already signaled an aggressive agenda if he wins, from mass deportations to travel bans on certain Muslim-majority countries.

A law first drafted in the nation’s infancy would give Trump as commander in chief virtually unlimited power to do so, military and legal experts said in a series of interviews.

The Insurrection Act allows presidents to call on reserve or active military units to respond to unrest in the states, an authority that is not subject to court review. One of the few guardrails only requires the president to request that participants disperse.

The main barrier to presidents’ use of the Insurrection Act is essentially political: Presidents don’t want to be the guy who rolled tanks down Main Street, says Joseph Nunn, a national security expert at the Brennan Center for Justice. There really isn’t much in the law that the president can control.

A spokesperson for Trump’s campaign did not respond to multiple requests for comment about the authority Trump might use to pursue his plans.

Congress passed the law in 1792, just four years after the Constitution was ratified. Nunn said it is an amalgamation of several laws passed between then and the 1870s, a time when there was little to do in the way of local law enforcement.

It is a law that in many ways was made for a country that no longer exists, he said.

It is also one of the most substantial exceptions to the Posse Comitatus Act, which generally prohibits the use of the military for law enforcement purposes.

Trump has spoken openly about his plans if he becomes president, including deploying the military to the border and in cities struggling with violent crime. His plans also include deploying the military against foreign drug cartels, a position echoed by other Republican primary candidates such as Florida’s governor. Ron DeSantis and Nikki Haley, the former UN ambassador and governor of South Carolina.

The threats have raised questions about the meaning of military oaths, presidential power and who Trump might appoint to support his approach.

Trump has already suggested he could bring back the retired Army lieutenant. Gen. Michael Flynn, who briefly served as Trump’s national security adviser and twice pleaded guilty to lying to the FBI during its Russian influence investigation before being pardoned by Trump. Flynn suggested in the wake of the 2020 election that Trump could seize voting machines and order the military in some states to help repeat the election.

Efforts to invoke the Insurrection Act and use the military for domestic policing would likely draw resistance at the Pentagon, where Gen. Charles Q. Brown is the new chairman of the Joint Chiefs of Staff. He was one of eight members of the Joint Chiefs who signed a memo to military personnel in the aftermath of the Jan. 6, 2021, attack on the U.S. Capitol. The memo highlighted the oaths they took and mentioned the events of that day, aimed at stopping the certification of Democrat Joe Biden’s victory over Trump, sedition and insurrection.

Trump and his party nevertheless maintain broad support among those who have served in the military. AP VoteCast, an in-depth survey of more than 94,000 voters nationwide, found that 59% of U.S. military veterans voted for Trump in the 2020 presidential election. During the 2022 midterm, 57% of military veterans supported Republican candidates.

Presidents have issued a total of 40 proclamations invoking the law, some made multiple times over the same crisis, Nunn said. Lyndon Johnson invoked it three times in Baltimore, Chicago, and Washington in response to the unrest in the cities following the assassination

Dr. de Rev.

Martin Luther King Jr. in 1968.

During the civil rights era, Presidents Johnson,

John F.

Kennedy and


Eisenhower used the law to protect activists and students by desegregating schools. Eisenhower sent the 101st Airborne to Little Rock, Ark.


to protect black students integrating Central High School after the state’s governor activated the National Guard to keep the students out.

George HW Bush was the last president to use the Insurrection Act, a response to riots in Los Angeles in 1992 following the acquittal of white police officers who beat black motorist Rodney King in a videotaped incident.

Repeated attempts to invoke this act during a new Trump presidency could put pressure on military leaders, who could face consequences for their actions, even if they were done at the president’s direction.

Michael O Hanlon, director of foreign policy research at the Brookings Institution think tank, said the question is whether the military is being imaginative enough with the scenarios it has presented to prospective officers. Ambiguity, especially when violence is involved, is not something military personnel are comfortable with, he said.

There are many institutional checks and balances in our country that are legally quite well developed, and it will make it difficult for a president to just do something arbitrary out of the blue, said Ohanlon, who specializes in US defense strategy and its use . of military violence. “But Trump is good at developing a semi-logical line of thought that could lead to a place where there is enough chaos, violence and legal uncertainty to call in the military.

Democratic Rep. Pat Ryan of New York, the first graduate of the U.S. Military Academy who represents the congressional district that includes West Point, said he took the oath three times while at the school and several more times during his military career. He said the class focused extensively on an officer’s responsibilities to the Constitution and the people under his or her command.

They really hammer home the seriousness of the oath and who it was to, and who it wasn’t to, he said.

Ryan said he thought it was universally understood, but January 6 was very disturbing and a wake-up call for me. Several veterans and active duty military personnel were charged with crimes in connection with the attack.

While these connections were troubling, he said he thinks those who harbor similar sentiments make up a very small percentage of the military.

William Banks, a law professor at Syracuse University and an expert on national security law, said a military officer is not forced to follow unlawful orders.” That could create a difficult situation for leaders whose units are called into domestic policing, as they could be charged with taking unlawful actions.

But there is a large thumb on the scale in favor of the president’s interpretation of whether the order is legal,” Banks said. “You would have a very big row to pick and you would have a big foot in the military if you choose not to follow a presidential order.

Nunn, who has proposed steps to limit the law’s invocation, said military personnel cannot be ordered to break the law.

Members of the military are legally required to disobey an unlawful order. At the same time, this is a lot to ask of the military, because they are also obliged to follow orders, he said. And the penalty for disobeying an order that turns out to be lawful is that your career is over and you may spend a very long time in jail. The stakes for them are extremely high.


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