With cities ablaze and civil disturbances continuing night after night, President Trump has threatened to use military force to maintain order. He has the power to do that. He can federalize the National Guard and even use regular military forces. Though he is angry and tempted to use force, he shouldn’t. Troops make for lousy police, their use can be counterproductive and it sets a bad precedent.
To understand the president’s powers, we need to start with a quick tutorial on Title 32, Title 10, Posse Comitatus, and the Insurrection Act.
Title 32 refers to the section of the U.S. code that covers the National Guard. The National Guard is different from the other elements of the Armed Forces. As the descendant of the colonial militia, it comes under the command of the state governor, not the president. Today, there are two elements of the National Guard, the Army National Guard (336,000 personnel) and the Air National Guard (108,000). (In the future there may be another element, the Space Guard.)
When the National Guard performs state missions, the governor is typically in charge. These state missions can be paid for by the federal government, as is true today for National Guard personnel supporting state efforts to contain the pandemic. The state can also pay for missions. States don’t like to do that because of the impact on their budgets but will for an important local requirement. Most Popular In: Aerospace & Defense
When the National Guard deploys for overseas missions, it mobilizes under national emergency (e.g., 10 USC 12302) mobilization authorities, trains up in the United States, and is sent on its way.
And that’s how it works most of the time. Even when there are civil disturbances, the National Guard usually comes under state authority. Suppressing civil disturbances―like providing disaster relief―are standard missions for the National Guard. They are state troops and intended to meet local needs.
However, the president does have the authority to take command away from the governors and put the Guard into federal service under “Title 10,” the section of the U.S. code that covers the armed forces. The president could try to do this by using one of the federal mobilization authorities, but this requires a declaration of emergency, such as was made after the attacks of 9/11. The president could try to declare an emergency for domestic disturbances, but the statutory language clearly envisions an overseas emergency, and governors would immediately challenge this in court.
That brings us to the Insurrection Act. This old statue allows the president to take control of the National Guard in certain circumstances: “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
For example, President Eisenhower federalized the National Guard in 1955 to integrate the schools in Little Rock Arkansas when it became clear that the state would not enforce the law. Similarly, President Kennedy federalized the National Guard in 1962 to integrate the University of Mississippi.
The president can also use regular military forces―active-duty troops and the federal reserves like the Army Reserve― to suppress disturbances, but their use is much more restricted. The Posse Comitatus Act prevents active-duty forces from conducting law enforcement activities, so they cannot just deploy to a troubled city and start sweeping up rioters. This limitation is intentional, not an accidental byproduct of legislation intended for other purposes. Posse Comitatus came about at the end of reconstruction when the southern states wanted to prevent the federal Army from re-imposing military occupation.
Here again, the president would have to use the authorities of the Insurrection Act. The act has been used for this purpose but rarely. President Bush used it in 1992 to help maintain order during the Los Angeles riots, but he did that at the request of the governor. It was used in 1968 during the riots around the Democratic national convention. No doubt lawyers opposed to President Trump’s proposal will build an argument that the president can’t use active-duty military today, but to this non-lawyer, the language and precedents seem pretty clear.
Nevertheless, the president should resist the temptation to use military force. Soldiers make lousy police officers. Soldiers are trained to view civilians as potential threats and to use overwhelming firepower when faced with opposition. Their legal training focuses on the law of war, not constitutional rights.
Law enforcement officers like the police view civilians as citizens to be protected from the few bad elements in society. Police officers receive many hours of training on the law, criminal procedure, and the rights of citizens.
The National Guard bridges the gap a little. They receive training in riot control because that has traditionally been one of their missions, and they are members of the local community, which eases the feeling of military occupation. Nevertheless, their training in law enforcement is thin―for the last 20 years, they have been fighting wars overseas―so they are best kept in support. Indeed, the Guard leaders have customarily preferred to leave law enforcement to others. Much better to do humanitarian relief as with the pandemic or after a hurricane.
Those readers of a certain age will remember the urban riots of the late 1960s. The National Guard used firepower extensively, employing heavy machine guns, for example, and caused much damage to neighborhoods. At an antiwar demonstration at Kent State University, National Guard troops panicked and fired into a crowd of demonstrators, killing four. This seared imaginations for a decade. We would be well advised to avoid situations where incidents like this might occur.
Finally, using the military sets a bad precedent. It is a blunt instrument with too much firepower. It upsets the balance of constitutional powers between cities, states, and the federal government, and the potential for abuse is high. Further, the military is the most admired institution in the United States — that reputation should be protected, so it is available for crises that require military power.
So, the president should restrain his feelings of frustration and not step in with military force. There are still lots of ways he can support governors in restoring order― providing funding and supplies, for example―and he should use those tools instead.