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Presidents Once Used This Law To Uphold Civil Rights And Protect Black Americans. Now Trump Is Trying To Silence Dissent

Members of the D.C. National Guard stand on the steps of the Lincoln Memorial monitoring demonstrators during a peaceful protest against police brutality and the death of George Floyd, on June 2, 2020 in Washington, DC. (Win McNamee/Getty Images)
Members of the D.C. National Guard stand on the steps of the Lincoln Memorial monitoring demonstrators during a peaceful protest against police brutality and the death of George Floyd, on June 2, 2020 in Washington, DC. (Win McNamee/Getty Images)

True to form, President Donald Trump appears poised to blunder into an area fraught with constitutional, not to mention human peril. He has threatened to deploy the United States military if “a city or state refuses to take actions that are necessary to defend the life and property of their residents,” to, as he says, “stop the rioting and looting.”

There is an irony here. Trump was unwilling to deploy the considerable authority he had under the Defense Production Act of 1950 to do what needed to be done in the face of the pandemic, but is willing to deploy authority he may well not have — or should not exercise — in the face of protests and civil disorder.

Trump refused to invoke the full power of the Defense Production Act, which would enable the government to direct private companies to ensure the procurement of vital equipment needed to fight the coronavirus pandemic. Governors and members of Congress pleaded for its invocation. He relented only to get General Motors to step up ventilator production and 3M to manufacture N-95 masks, but no further. It would be, he said, the equivalent of “nationalizing our business,” which we should not do. “Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well,” he said.

But, of course, it’s OK to be Venezuela when Trump threatens federal military force to quell domestic disputes.

And it’s OK to do it even when doing so runs afoul of bedrock principles of federalism, the preference for state governments and local authorities to deal with public safety issues and the enforcement of domestic law, rather than centralized federal oversight and control. Those principles run deep. Indeed, the American Revolution was spurred in part by colonial reactions to King George’s use of the military to enforce English laws against American civilians.

Here, governors not only haven’t asked for the president’s help; some actively oppose it.

The Posse Comitatus Act of 1878 was expressly intended to limit the president’s ability to use the federal military in domestic law enforcement. (Its original intent was to end the use of federal troops to police state elections in former Confederate states.) There are exceptions: the Insurrection Act of 1807 enables the president to use the federal military to “to suppress an insurrection,” but crucially, at the request of a state legislature or governor. And so far, no one is asking.

But there are two other provisions which enable the president to use federal military force for domestic purposes over the objection of, or without the consent of, a state’s governor. The president may use federal military force when a rebellion makes it “impracticable” to enforce the law by judicial proceedings. Or he may use federal force when insurrection, domestic violence or an unlawful conspiracy “hinders the execution” of state or federal law or deprives citizens of their constitutional rights.

Five young black students leave a U.S. Army stationwagon as they arrive at Central High School in Little Rock, Ark. on September 30, 1957, during their first full week of classes. They are escorted to school by federal troops enforcing integration of the previously all-white school. (AP)
Five young black students leave a U.S. Army stationwagon as they arrive at Central High School in Little Rock, Ark. on September 30, 1957, during their first full week of classes. They are escorted to school by federal troops enforcing integration of the previously all-white school. (AP)

Ironically, these are the very provisions that President Eisenhower and President Kennedy relied on to uphold civil rights and the protection of African Americans in the Deep South during the ‘50s and ‘60s.

As exceptions to the general rule against deploying the U.S. military within the U.S, they are, or should be, reserved for the gravest of circumstances. Here, governors not only haven’t asked for the president’s help; some actively oppose it.

What if Trump invokes the Insurrection Act anyway? It is unlikely that any court — most especially this Supreme Court — would stand in his way.

That would leave the decision to the voters in November, if it is not too late. Venezuela, anyone?

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Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.

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