On Monday evening, President Donald Trump told the American people: “I am mobilizing all available federal resources — civilian and military — to stop the rioting and looting,” but it can be hard to determine what resources he can access. The commander-in-chief can give orders to the military, but some laws restrict or prevent him from ordering military actions against American citizens. Legal experts are now trying frantically to figure out what Trump’s military deployment plans can accomplish.
In his speech from the Rose Garden on Monday, the president hinted that he might invoke an 1807 law called the Insurrection Act. In extreme cases, this law allows the president to deploy the military and federalized National Guard troops to quell uprisings on American soil. It is one of the few ways around the Posse Comitatus Act, which prevents the U.S. Military from policing Americans within the United States. There are plenty of hoops to jump through to invoke this loophole, and what its effects are still not easy to predict.
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“If a city or a 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,” Trump said on Monday. This statement flies in the face of one of the core rules of the Insurrection Act, which states that the president can deploy the military “when requested by a state’s legislature, or governor.”
That may not be the case in practice, however. The Insurrection Act has been invoked at least 19 times in U.S. history, and on at least six of those occasions, state leaders did not request the help.
While military experts debate whether the president needs permission to send the military into each state, others wonder if the demonstrations even qualify for this response.
The Insurrection Act may be used to “address an insurrection, domestic violence, unlawful combination or conspiracy in any state, which results in the deprivation of Constitutionally-secured rights, and where the state is unable, fails, or refuses to protect said rights.” Whether the protests so far could be defined this way is definitely up for debate, and whether the president could successfully get his orders followed before that debate is over remains to be seen.
Even some of Trump’s military advisers are opposed to this invocation, with Defense Secretary Mark Esper telling NBC News: “We have more than enough National Guard capacity out there… I do not support invoking the Insurrection Act.”
Even if Trump goes as far as to invoke the Insurrection Act against his advisers’ will, the military would be required to aid in the disbanding of riots and the prevention of looting. While phrases like “martial law” are circulating on social media, Trump’s plan to deploy the military would not really meet those standards. The military would still be required to protect Americans’ constitutional rights — including freedom of assembly for peaceful protests. Any service members that didn’t do so would be subject to prosecution.
