On the Use of the Military Domestically

We don’t want a military state in America. We don’t want the police, nor the military to get beyond control. Neither do we want chaos or anarchy. When services get overwhelmed with fires, disturbances, pandemics, etc, outside help is called in from other areas. The primary source is often the National Guard. Our armed services, whether it is the police or the national guard or the active military, are there to protect our lives, our property, our values and our liberty. These institutions are funded by us, the taxpayers, for the benefit of all of us.. While there is often good reason to protest and protesting is our constitutional right, when protests cross the line into looting, arson and threats to life and limb, they must be quelled by any means at our disposal. I don’t know if there is an institutional bar to using the military to control domestic unrest that gets beyond the capability of local resources, but, as a last resort, I for one see no reason to refrain from its use.  Nothing scares me more than anarchy, autonomous enclaves and the weakening of law and order. Nor do we want any service to exceed the mandate to which it is committed.

One thought on “On the Use of the Military Domestically

  1. I thought it was interesting that President Trump tweeted he would deploy the federal military to assist the states if their national guard couldn’t control the rioting, etc. That brought up in my mindthe constitutional question whether the President can use the military to respond to domestic unrest? The following answer is based on an opinion blog from a retired Naval JAG officer:

    YES, he can . . BUT this is subject to certain, critical legal restrictions under the Posse ComitatusAct and the Insurrection Act. The president is, of course, the commander-in-chief of the Armed Forces (and the D.C. National Guard), but he lacks the authority to use the military in any manner that he pleases. That authority is constrained by Congress and the courts and further informed by military instructions and doctrine.

    Under the 1878 Posse Comitatus Act, Congress has limited the president’s ability to use the federal(title 10) military in domestic law enforcement operations such as searches, seizures, and arrests.A criminal statute, the Posse Comitatus Act makes it unlawful for the Army or Air Force to “executethe laws … except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So, as a general matter the president cannot simply call in federal military forces or nationalize state National Guard units to quell domestic civil disturbances in Minneapolis or elsewhere without pointing to a Posse Comitatus Act exception.

    I won’t bore you with all those exceptions in the Act, but the most important exception to the Posse Comitatus Act that presidents use is the Insurrection Act. It’s the key that unlocks the door. If there’s an insurrection in the state, that state’s legislature or governor can request assistance (LA riots 1992 beating of Rodney King). Even without a request that Act has been used in the 50’s and 60’s to enforce civil rights laws. It might interest you to know that many presidents have used the Act . . George H and George W Bush, Dwight Eisenhower, Herbert Hoover, Woodrow Wilson, Abraham Lincoln, Harry Truman, Lyndon Johnson, John Kennedy (for different domestic matters)

    The Insurrection Act hasn’t been invoked in 28 years which is probably why PresidentTrump’s threat of deployment seems unique.

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