Since the death of George Floyd on May 25th, there have been many protests regarding police brutality and racial justice worldwide. In the United States, these demonstrations have been the most intense seen since the 1960s. While most protests have been peaceful, there have been incidents of violence, looting, and armed confrontation. There is disagreement regarding who is to blame for these incidents.
On June 1st, President Trump threatened to deploy the United States military against civilian protestors if governors and mayors did not “establish an overwhelming law enforcement presence until the violence has been quelled.” He recommended that governors use the National Guard to “dominate the streets.” These statements stood in sharp contrast to his previous tweet encouraging the Governor of Michigan to negotiate with armed demonstrators who objected to Stay-at-Home orders stemming from the COVID 19 pandemic. Additionally, he temporarily deployed troops to deal with protests in the Capital.
The Legal Point of View
These actions raise issues regarding federalism and the separation of powers. In the United States, the federal government does not have general police powers. Such powers involve providing for the health, safety, morals, and welfare of the citizens. Thus, issues such as dealing with social unrest generally fall within the province of state governments. But, as with many aspects of American federalism, the lines are murky, and there are no absolutes. Additionally, the situation is further complicated by the fact that the District of Columbia does not exist within a state, and the Constitution gives control over the area to Congress (which has granted some local rule via legislation).
Generally, the President, despite being the Commander in Chief, cannot use the military as law enforcement except where the Constitution or Congress allows (Posse Comitatus Act of 1878). Congress has expressly authorized the President to use the military to deal with social unrest for over two hundred years. Specifically, the Insurrection Act of 1807 allows the President to use the Armed Forces and National Guard to address insurrection at the request of state government, where such uprising interferes with law enforcement, or where the state cannot or will not protect constitutional rights. Presidents have used this ability relatively sparingly, but they have used it in the past with various internal conflicts. Also, the most recent examples involve governors specifically requesting assistance from the President.
President Trump’s June 1st statements implied that he might use the military in ways that governors oppose rather than seek. Such comments are reminiscent of remarks he made in April, where he asserted that he could force states to reopen from lockdown because his “authority is total.” President Trump ultimately appeared to concede that the governors controlled the decisions to lift restrictions. It is unclear to what extent the President will follow through on his threats. As recently as June 26th, he canceled a trip with the stated purpose of ensuring that law and order was maintained in D.C.
The Way Forward
Congress could restrict the President’s ability to use the military in this way. Such restrictions seem unlikely out of the current Congress with divided government between the Democrat-controlled House and Republican-controlled Senate. Generally, Republican legislators have not denounced the threat outright. Instead, the primary source of denouncement has come from the military itself. Both former and current generals expressed a lack of support for the idea. Trump’s former Secretary of Defense, James Mattis, has been among the most outspoken critics regarding the President’s statements. The current Secretary, Mark Esper, also distanced himself from the President and invocation of the Act.
The upcoming presidential election in November further complicates the situation. President Trump recently started holding campaign rallies again, with one in Tulsa on June 19th. Before the rally, he tweeted that protestors would be treated differently than in “New York, Seattle, or Minneapolis.” No military presence or crackdown materialized, and protests were reportedly peaceful. The rally drew fewer participants than expected, which Trump and his campaign have attributed to protestors.
Thus, the United States is experiencing long-term protests and an unclear sense regarding if the President will attempt to use the troops to deal with such protests. As for now, the general unpopularity of the President’s response to the protests and lack of support from the military may be constraining his actions. Or, the relative fall in violence and property damage may have convinced him that such measures are unnecessary. It is unclear to what extent these conditions matter and will hold. All of this is happening during a time where the United States is experiencing a surge in coronavirus cases, leaving many with a sense of uncertainty that is relatively unfamiliar to Americans.
Morgan L.W. Hazelton, J.D. & Ph.D, is an Assistant Professor of Political Science at Saint-Louis University.