President Donald Trump has the authority to deploy federal military forces and nationalize state militias to end ongoing rioting via the Insurrection Act, explained Cully Stimson, a legal expert focusing on national and homeland security with the Heritage Foundation. He offered his analysis on Monday’s edition of SiriusXM’s Breitbart News Daily with host Alex Marlow.
Marlow asked what legal options are available to a president in addressing lawlessness.
Stimson replied, “The president does have some authorities under the Constitution, but he’s limited by statute — not only by the Posse Comitatus Act but also by the Insurrection Act. So, he can’t just willy nilly throw the military in there to solve this problem.”
Invocation of the Insurrection Act is best done in coordination with governors, Stimson noted.
“The governors have a key role, just like they did in protecting the health and safety of their citizens in the coronavirus [outbreak] and enforcing the rule of law in their states, and they have to ask for the president’s help for bringing in federal troops,” Stimson stated. “The president has a couple of exceptions he you can use here, but the governors play a key role, and local politicians play a key role, and they have to have the courage to stand up to say something and do something about it.”
Stimson remarked, “You’ve heard about the 1878 Posse Comitatus Act, in which Congress limits the president’s ability to use military forces — Title 10 forces, regular military — in domestic law enforcement operations, but if a state — if a governor or the legislature of a state — invokes the Insurrection Act, [then] the President can do that.”
Stimson added, “In 1992 … Governor Pete Wilson asked to invoke the Insurrection Act after the Rodney King riots. President George H. W. Bush [then] federalized California National Guard folks, and brought in active duty Army and Marine folks from bases in that area to the scenes of the riots.”
Stimson explained the scenarios in which a president can execute domestic law enforcement with military personnel in the absence of the respective governor’s consent.
“Even if the legislature [of a state] or the governor does not invoke the Insurrection Act, there are a couple of other circumstances under the Insurrection Act where the president can deploy military — either federal or state folks — where he believes it’s necessary to quote, ‘suppress insurrection, domestic violence, unlawful combination or conspiracy,’ unquote.”
Presidential powers related to insurrection are partly articulated in 10 U.S. Code § 253, which reads:
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
Stimson continued, “The president does have tools of his authority, but just like with the coronavirus, there are a lot of connections here. The governors have the primary role. The governors have police power. The federal government doesn’t, and so the president has to be in coordination with and in communication at all times with the governors to see whether they’re going to invoke the Insurrection Act, and if the president determines that they’re not doing it, but they really need to do it, and there’s nothing that can quell the riots or violence unless and until he federalizes or brings in federal military troops, he’s not hapless.”
“[Trump] is not a person who has no other options on the table,” added Stimson. “The president does have lawful tools at his disposal, but really the governors and the local authorities are the ones that should be — and typically do — use these authorities to quell riots.”
Federal secretaries, bureaucrats, and White House aides are familiar with the Insurrection Act, assessed Stimson.
“The last time it was it was invoked was back in 1992, so it’s rare that it’s invoked, but it has been invoked. But it has not been invoked in recent years when people think it probably should have been,” Stimson noted. “Historically, when governors have either used or asked for the president to use the Insurrection Act, they’ve usually been used in the 50s and 60s to protect the civil rights of African Americans.”
Stimson added, “That’s the sort of interesting thing about it, but it was not invoked in Baltimore during the riots after the death of Freddie Gray. It was not invoked in the aftermath of Hurricane Katrina, and so it’s rarely invoked, but it’s available to the president, and the governors are certainly aware of it.”
Marlow asked what authorities governors and local and state officials have to restore law and order.
Stimson responded, “Every governor is the commander-in-chief of the state militia — the national guard — so that’s the last big tool in the toolbox that a governor has. Of course, the better tool — the more often used tool — is local law enforcement and one would think, although this doesn’t seem to be the case right now, that the mere presence of police officers with their riot gear, with their guns, with their armored personnel carriers, that that would stop people, but this doesn’t seem to to be stopping these folks, so the governors of course can use the big tool which is the, the national guard, and those national guardsmen report to the commander in chief of the state, the governor, and they set the rules of engagement for what they can do. Every person in that situation has the inherent right of self defense, so they’re attacked and their life is at – rather the comrade life is at threat. They can respond with deadly force, but the typical rules of engagement require them to use proportional force, obviously every time lawful force proportionate to the threat to quell, to quell the problem now.