Steve Vladeck Trump's George Floyd protest threats raise legal questions. Here's what he can (and can't) do.

The domestic use of the military could absolutely become a problem. But the president’s rhetoric — and that of his supporters — is, at least for now, of equal concern.
Image: Protests against the death in Minneapolis police custody of George Floyd in Washington
Police and protesters clash amid nationwide unrest following the death in Minneapolis police custody of George Floyd, at Lafayette Park near the White House, on May 31, 2020.Jim Bourg / Reuters
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By Steve Vladeck, professor at the University of Texas School of Law

At the same time as federal law enforcement officers in riot gear used tear gas and armed force to clear Lafayette Square of peaceful, law-abiding protesters Monday afternoon, President Donald Trump, standing just a few hundred yards away, threatened that more force would be coming to those cities and states that, in his view, failed to adequately respond to the protests resulting from the May 25 killing of George Floyd. As the president warned, if local and state governments “refuse[] to take the 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.”

Trump’s comments came on the heels of even more aggressive statements from two high-profile congressional Republicans. Earlier Monday, Arkansas Sen. Tom Cotton argued that the president should use the military to restore order with “[n]o quarter for insurrectionists, anarchists, rioters, and looters.” (Even during wartime, denial of quarter to enemy soldiers is a crime.) Not to be outdone, Florida congressman Matt Gaetz tweeted, “Now that we clearly see Antifa as terrorists, can we hunt them down like we do those in the Middle East?” Gaetz’s tweet was so inflammatory, in the eyes of Twitter, that it was flagged with a warning by the platform.

Against the backdrop of these sentiments, and the president’s actions in Lafayette Square, many people are reasonably worried about whether he really can order the U.S. military to turn their guns toward the American civilians they volunteered to protect.

The legal answer is complicated. Article I of the Constitution gives Congress the power to “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” And it was under a 1792 statute enacted pursuant to that power that President George Washington put down the first major domestic disturbance under the new constitutional government — the Whiskey Rebellion.

Partly because of how responsibly Washington used the Militia Act of 1792and partly because of concerns that state militias were unreliable, Congress in 1807 provided that, in any circumstance in which the president had the power to call forth the militia, he could also use federal regulars. That statute, now known as the “Insurrection Act,” remains on the books today — and has been used hundreds of times throughout American history for everything from frontier disputes with Native American tribes to the imposition of a blockade of Southern ports at the beginning of the Civil War to the enforcement of federal court orders requiring the desegregation of public schools in Little Rock, Arkansas. And although the Posse Comitatus Act of 1878 is often understood as prohibiting domestic use of the military for law enforcement, it only prohibits such use of the military without specific congressional authorization — authorization that the Insurrection Act already provides.

Along the way, two important developments took place. First, Congress eliminated the procedural checks it had initially placed on the president. Whereas the 1792 act provided that the president’s power to use the militias for domestic law enforcement would expire 30 days after the beginning of the next congressional session, the statute today includes no such sunset. Congress also initially required the president to go before a judge before he could use the military — to confirm that he met the terms of the statute. That requirement, too, has long-since disappeared.

The result is that, as it stands today, the Insurrection Act gives the president sweeping power to use the military for domestic law enforcement — even if local and state officials don’t seek his help — while leaving the factual determination that the military is necessary entirely to him.

As has been true for many other delegations of national security powers to the president, scholars have warned Congress for years of the need to impose more aggressive checks and accountability mechanisms — to no avail.

But although the Insurrection Act was regularly invoked well into the 20th century, usage dropped dramatically after the Vietnam War. Indeed, the last time it was invoked was by President George H.W. Bush in May 1992 — in the middle of the Rodney King riots in Los Angeles. It wasn’t invoked by President Bill Clinton after Oklahoma City bombing or by President George W. Bush after the terrorist attacks of Sept. 11, 2001, or Hurricane Katrina. Some of that may be because local and state law enforcement officers have far greater resources and capabilities than they used to, or because presidents may be wary of the potential political cost of taking a federal leadership role in a situation bound to produce angry constituents.

But there is also widespread concern that domestic use of the military is bad policy, if not affirmatively corrosive to the rule of law — and that the military’s job is to fight foreign enemies, not police American streets. This concern is supported by both military and political experts, not to mention advocates on the ground.

"I believe that we in America should not get used to or accept uniformed service members of any variety having to be put in a position where they are having to secure people inside the United States of America," Army Maj. Gen. Thomas Carden, the adjutant general of the Georgia Department of Defense, said on Sunday.

But there is also widespread concern that domestic use of the military is bad policy, if not affirmatively corrosive to the rule of law.

One note: It has become commonplace to conflate any domestic use of the military with the imposition of martial law — a term that refers far more specifically to circumstances in which there is no functioning civilian authority, such that the military is governing by necessity. Such a conflation is a mistake. The purpose of the Insurrection Act is to provide the president with a mechanism for ensuring that federal laws are enforced in circumstances in which local and state authorities are either unable or unwilling to do so.

Indeed, given the distrust of local law enforcement in many communities today, it seems hard to imagine a well-trained, cool-headed military presence could make the situation worse. On the other hand, in Washington, D.C., on Monday night, military helicopters hovered over protesters in a maneuver similar to ones used to scare insurgents in war zones.

The domestic use of the military could become a problem. But the president’s rhetoric — and that of his supporters — is, at least for now, of equal or greater concern. Using federal troops to keep the peace when local and state authorities are unwilling or unable to do so is a legal option. But if the president says he is sending in the military to “hunt down” alleged agitators, in the words of Gaetz, and to “deny quarter” to those suspected of looting and rioting, in the words of Cotton, then Trump may be abiding by the letter of the Insurrection Act, but he would be trampling on its purpose — and on the rule-of-law norms that it exists to help protect.

CORRECTION (June 3, 2020, 2:45 a.m. ET): A previous version of this article misstated the date of George Floyd's death. Floyd died on May 25, not May 20.