(Note: in our last issue we invited members of the community to submit letters and commentary to share their views — here is the second in this series. Send submissions to info@dckcmd.com)
Can a US President Deploy Federal Military Forces to Chestertown?
Background: 1789 – 2020
Yes, but there’s a lot of history. The Founding Fathers were very suspicious of standing armies because European monarchs frequently used them to dominate their subjects. As early as 1768, Samuel Adams wrote: “Even when there is a necessity of military power, within a land a wise and prudent people will always have a watchful and jealous eye over it.” And ten years later, James Madison told the Constitutional Convention in 1787: “The means of defense against foreign danger have been always the instruments of tyranny at home.”
Art. II, Sec. 2 of the Constitution (ratified 1789) reads: “The President shall be the commander in Chief of the Army and Navy of the United States and of the Militia of the several states when called into the actual service of the United States.” In 1807 Congress passed the Insurrection Act at Jefferson’s request. And governors came to enjoy authority similar to the president’s over their National Guards.
Lafayette Park June 2020
Americans saw in real time on 6/01/20 what Adams, Madison and many others feared:
a President of the United States deploying to the American capital, elements of the 82nd Airborne Division and units of several states’ National Guards to “dominate” a peaceful public demonstration in Lafayette Park. The mayor of Washington, D.C. strenuously objected, but to no effect.
The crowd gathered in Lafayette Park across from the White House that late Monday afternoon, was non-threatening. However, they were gassed, pepper-sprayed, shot with rubber bullets and forced to make way for the president to stroll to a photo op. The First Amendment guarantees: “… the right of the people peaceably to assemble, and to petition the government for a redress of their grievances. “
The “grievance” which drove millions to the streets was the horror of watching (video) the 5/25/20 fatal suffocation of an unarmed, handcuffed, prone African American man by a Minneapolis police officer. The President ignored the cause and thus the grievance, focusing instead on using armed force to maintain law and order, even threatening to use Federal forces in states where governors were being “too weak” in their efforts. To date 23 states and the District of Columbia have called up their National Guards.
Was the President’s use of Force on 6/01/20 legal?
The answer is a clear “yes” in the case of Washington, D.C. because it is a federal district not a state.[1] However, unless governors or their legislatures request US military intervention, presidents over the past 231 years, have been very cautious in deploying Federal forces into states. President Eisenhower did so to enforce the law integrating public schools. And in 1992, the California governor and L.A. mayor asked President G.H. W. Bush to send soldiers from an Army division stationed at Ft. Ord, CA. to help restore calm in Los Angeles. Multiple instances of crowds sometimes violent, erupted following the acquittal of the LA police, filmed severely beating Rodney King, an African American. President Bush also nationalized the California National guard, placing them and the police under the Army division commander.
The president threatened the Minnesota Governor he would do so in a 5/29/20 tweet: “Any difficulty and we will assume control but, when the looting starts the shooting starts…”
Are there Legal Constraints on the President’s use of Federal Forces in the US?
Yes. There are two Congressional Acts that limit a president’s ability to deploy US military domestically: (1) The 1807 Insurrection Act and (2) the 1878 Posse Comitatus Act. The Federal Courts can also intercede. Moreover, once invoked and the Federal military, including nationalized National Guard, is in place, it can declare martial law or assume “extraordinary emergency authority”.
The 1807 Insurrection Act:
- Prior to invoking the Act, the president and the attorney general must first issue a “proclamation to disperse.” LBJ issued the proclamation in 1968 for DC.
- Enables state legislatures (or governors) to request assistance from the president to suppress an insurrection by nationalizing other states Guards or deploying the Federal Military.
- The president can do either to uphold civil rights and protect the rights of minorities. State will be deemed to have denied citizens equal protection of laws.
- The president can use the US armed forces when there is an interference with federal or state law.
- Once invoked, the Defense Department interprets the law as “supporting the civilian law enforcement agencies.”
The 1878 Posse Comitatus Act:
President cannot nationalize the National Guard or insert the US Army or Air Force in order to “execute the laws…except n cases and under circumstances authorized by the Constitution or acts of Congress.” The Insurrection Law is the major exception.
Martial Law:
- Is imposed when the military assumes control until civil authority is restored. FDR was the last president to declare martial law (1942 in Hawaii).
- The most recent state level instance occurred in 1966. The Governor of California declared martial law to suppress civil unrest following the shooting of a Black teenager by a white police officer.
Extraordinary Emergency Authority:
- Usually requires prior presidential authorization, but can be unilaterally assumed if that is impossible.
- Taken on when local authorities are unable to control the situation.
- Limited to actions necessary to quell large scale, unexpected civil disturbances, to prevent loss of life or wanton destruction of property.
- Actions necessary to restore governmental function.
Will Chestertown likely be occupied by US Military or Nationalized National Guard?
It could happen under very serious circumstances. Or if a president ignores the Constitution, the Comitatus and Insurrection Acts and sends in the 82nd Airborne Division because the citizens are aggrieved and refuse to pay their Federal Taxes. However, the police force, the sheriff, the local mayor and council and the county commissioners would have to join the demonstration and refuse to intervene. At that point the division commander could declare martial law and assume extraordinary power authorized by the current president, returning us to familiar COVID 19 life styles.
Tom Timberman, June 2020
[1] The Federal Government can veto or change or initiate Washington, D.C. laws and must approve its budget. The city has circa 750,000 residents, but has no voting representation in Congress. It is expected that another attempt to become the 51st state will be made following the 2020 Election. The DC National Guard reports to the Secretary of Defense and the President, not to the Mayor.