U.S. President Donald Trump has threatened to invoke a centuries-old law that would allow the deployment of active-duty soldiers to quell widespread protests stemming from the death of George Floyd.
Floyd, a 46-year-old Black man, died on May 25 in Minneapolis after pleading for air while a white police officer pressed a knee into his neck during an arrest near a grocery store. The incident has become a turning point in the fight against racial injustice in the U.S., with massive protests streaming through American streets for nearly a week.
Trump has urged the governors of states that are seeing particularly tense protests to be more aggressive against demonstrators.
On Monday, he suggested he would call in the troops if governors refuse to make use of the National Guard.
“If the city or state refuses to take 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,” he said, during a brief press conference outside the White House.
To do that, Trump would lean on the Insurrection Act.
What is the Insurrection Act?
The Insurrection Act of 1807 is a group of statutes that essentially permits the president to send in U.S. forces to suppress a domestic insurrection — a violent uprising against an authority or government — that has impeded the normal enforcement of the law.
“Ordinally, we do not use the military for basic law enforcement. That authority is reserved to the state and our federal system,” said William Dunlap, a professor of constitutional and national security law at Quinnipiac University in Connecticut.
Governors generally have the authority to maintain order within their respective states under the U.S. Constitution. That concept is reflected in the Posse Comitatus Act, which prohibits the use of the military for law enforcement purposes except where Congress has authorized it.
“The Insurrection Act is one of the exceptions for the Posse Comitatus Act. In this situation, Congress has already given its approval,” Dunlap said.
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“It leaves an enormous amount of discretion to the president as to what constitutes an insurrection and as to when it’s necessary, but that power has been granted to the president.”
Depending on the scenario, part of the law suggests that states must first request help, but other parts do not require approval from a governor or state. Either way, the ball is “absolutely” in the president’s court in the end, Dunlap said.
For example, if a president deems the circumstances in a state make it impossible to enforce U.S. laws, or if people’s rights are being curtailed, the act can be invoked without a request from a governor.
“Most of the times its been invoked in the past, it’s been done at the request of the governors,” Dunlap said. Or, presidents and governors have agreed on the need for military intervention, he added.
Has it happened before?
Yes. The Insurrection Act was last invoked to contain the Los Angeles riots in 1992.
The riots were a reaction to the acquittal of four white police officers in the beating of Rodney King. King, a Black man, was attacked after a traffic stop. Video of King being beaten with police batons, shot with stun guns and stomped on enraged a community, spurring riots across much of the city for five days. It left more than 60 people dead and more than 2,300 injured.
Then-gov. Pete Wilson requested federal assistance to bring the riots to an end.
In 1989, the act was invoked after widespread looting unfolded in St. Croix, Virgin Islands, after the decimation of Hurricane Hugo.
Prior to that, American presidents have sent the military to Southern states to ensure the desegregation of schools and to protect civil rights in the 1950s and 1960s.
Since the civil rights movement, its use has become “exceedingly rare,” according to a report by the Congressional Research Service.
The act has been amended numerous times since its inception, based on certain situations.
Former president George W. Bush decided not to invoke the act in Louisiana during Hurricane Katrina in 2005 in part due to the then-state governor’s opposition to the move.
In 2006, after Hurricane Katrina, it was revised to expand the circumstances under which it can be imposed to include natural disasters. Those changes were dropped a year later after state governors, who did not want their authority ceded, opposed them.
What authority does Trump have to send in troops?
Trump does, indeed, have the authority under the Insurrection Act to dispatch the military.
Dunlap pointed to some growing discomfort from officials in the Pentagon about Trump’s threat to deploy the military. But even then, the military and National Guard cannot refuse the order should it come down, he said.
“Whatever you want to think of motives, this would be a lawful order by the commander-in-chief,” he said.
However, Trump’s comments have already faced conflict from officials in some states, who dispute that the president can send in troops against their will.
“The president of the United States is not a dictator, and President Trump does not and will not dominate New York state,” New York Attorney General Letitia James said in a statement Monday.
James said that the state was prepared to go to court over the act, if need be.
What legal challenges does it face?
The only possible barrier will be the courts, Dunlap said.
“There will undoubtedly be lawsuits if or when the president invokes this,” he said.
It could be challenged in two ways, Dunlap believes. The first would be a lawsuit to prevent the president from actually invoking the act, he said, and the second would be “damage lawsuits after the fact if he does, in fact, mobilize the troops.”
“But the courts are almost certain to defer to the judgment of the president,” he added.
Robert Chesney, a professor of national security law at the University of Texas, echoed this.
He told Reuters that a successful challenge to Trump’s use of the law was “very unlikely” as courts have, historically, been reluctant to second-guess a president’s military declarations.
“The law, for all practical purposes, leaves this to the president with very little judicial review with any teeth,” he told Reuters. “That may be a terrible state of affairs, but that’s what it is.”
Dunlap pointed to the theory of “rightness” in politics.
“The government will argue the president has not done anything yet, so you can’t prevent him from doing it,” he said. “You’re going to have to wait and see if he actually does it.”
— with files from Reuters and the Associated Press
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