Domestic Military Use Is Lawful but Not Yet Prudent | Opinion

The police officer responsible for George Floyd's death should be arrested and tried for murder. His conduct was, simply put, outrageous. Nonetheless, while the criminal process should be permitted to proceed, even the reprehensible conduct of the officer in question does not justify the nationwide rioting and looting that have followed.

President Donald Trump has now finally waded into this crisis. In a White House speech earlier this week, Trump declared: "Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled. If a city or state refuses 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 has the right answer on the law, but not on the policy—yet. The Constitution and Congress have granted the president extraordinary authority to deploy the military in response to a severe collapse of law and order. Chief executives have used this authority since the earliest days of the republic. But the more difficult question—one of prudence and judgment, not law and command—is whether the circumstances actually require federal intervention. Our sense, while living in two cities that have witnessed severe rioting, remains that our states and cities still have the resources to respond to civil disorder.

As a constitutional and historical matter, the primary responsibility for criminal law enforcement lies with state governors, mayors and sheriffs. Controlling rioters, restoring law and order to the city streets and prosecuting offenders all fall within the "police powers" reserved to the states under the Constitution's Tenth Amendment. The same principles of American federalism that divide governmental authority here also applied to the COVID-19 pandemic: States, not the federal government, have the primary responsibility for protecting public health and safety.

While the federal government plays a significant role in criminal justice (and a more marginal place in protecting public health), the Supreme Court has insisted that federal involvement in this area must focus on interstate crimes. Thus, the 1996 Supreme Court case of United States v. Lopez firmly rejected the idea of "a general federal police power" and noted that "in areas such as criminal law enforcement...states historically have been sovereign."

Presidents still have some legal power to uphold law and order when local authorities either will not or cannot do so. Going back to the 1794 Whiskey Rebellion, chief executives since George Washington have deployed federal troops or summoned the state militias to quell insurrections. The most famous case was Abraham Lincoln's deployment of federal forces against the Confederacy at the outbreak of the Civil War. Presidential authority comes, in limited part, directly from the Constitution. The Republican Form of Government Clause authorizes the federal government to protect the States "against domestic Violence," at the request of the legislature (or, in extreme circumstances, the governor). The president also has the constitutional responsibility to "take Care that the Laws be faithfully executed." To be sure, there is no doubt that the present disturbances interfere with the execution of some federal laws, such as the mails, communications and transportation.

Congress has amplified presidential power by granting the executive the authority to intervene even without the agreement of governors via the Insurrection Act of 1807. In order for the Act to apply, rioting must rise to the level of an "insurrection" that "opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws." Under this law, Dwight Eisenhower sent the armed forces into Little Rock when Arkansas Governor Orville Faubus refused to desegregate the city's public schools, and President George H.W. Bush sent troops to restore order in Los Angeles during the 1992 Rodney King riots.

These precedents would justify invocation of the Insurrection Act to end the rioting in the nation's cities.

Under older Supreme Court case law, the courts would defer to the president on whether the circumstances justified triggering the Insurrection Act. This approach reflects the appropriate institutional roles and capabilities that the Constitution assigns to the executive and the judiciary. Realistically, however, we expect litigation if the president deploys the armed forces. Some federal courts—though not, we think, the Supreme Court—might rule against Trump and seek to enjoin the deployment of the troops.

Some suggest that the Posse Comitatus Act (PCA) would limit use of the military during the current disturbances. That law, which ended federal occupation of the South during Reconstruction, forbids use of the U.S. military for law enforcement purposes. So it might be argued that the PCA precludes Trump's action. However, the PCA allows for exceptions when authorized by the Constitution or by another statute—such as the Republican Form of Government Clause and the Insurrection Act. And if commanders limited troops to restoring stability and supporting local police, but not arresting looters for crimes, the military would not be engaging in law enforcement in violation of the PCA anyway.

But just because Trump has the law on his side doesn't mean he should use it. Whether to use that power is a difficult judgment call. It looks to us that local and state law enforcement agencies, backed up by their National Guard units, have enough resources to handle the urban rioting for now. The president should really only introduce troops when the violence grows beyond their control; the classic federal role is to merely support the states, who retain (just as with the coronavirus) the primary responsibility for public safety. Federal intervention is a particularly poor choice if it is opposed by governors and mayors, because the assistance of local law enforcement is critical if a federal deployment is to succeed.

Donald Trump addressing nation from White House
Donald Trump addressing nation from White House BRENDAN SMIALOWSKI/AFP via Getty Images

Federal intervention would also blur the lines of political accountability in responding to the crisis. Federalism teaches that local and state government should remain primarily responsible for public health and safety, in part, because they are most immediately responsive to their constituents. Liberal Democrats have long governed most of the states and cities afflicted by the rioting, looting and arson. Minneapolis, for instance, where the street violence first broke out, has been under single-party Democratic rule for the past 42 years, up through the present. These regimes have failed, for decades, to secure the safety and prosperity of their minority residents—a major cause of the looting and rioting. Although present Mayor Jacob Frey is responsible for the actions of his own police department, he recently walked away from that department, expressed sympathy for the demonstrators and even permitted the demonstrators to burn down the Third Precinct's police station—which predictably, and perhaps intentionally, only exacerbated the violence. If this is the considered response of state and local leaders, they should live with the political consequences.

If Trump introduces troops nonetheless, there will, inevitably, be confrontations and bloodshed. And then state and local officials, who have mismanaged cities for decades, would attempt to shift political responsibility to a President Trump with blood on his hands. Trump might respond with gamesmanship on his part, too. Trump's June 1 speech might be trying to position the Democratic governors and mayors to take the blame for the continuing riots. As he did with the pandemic, he could argue that the primary responsibilities were theirs. If they defaulted, he could blame them for the crisis. If they did restore order on their own without federal troops, he could take the credit.

In a better world, all relevant government authorities, federal and state, would be on the same page. They would want to restore peace and order to our cities as swiftly but as humanely as possible. That might mean using federal forces, but only in limited and supplementary ways. And there would be careful rules of engagement for the federal troops. Insurrectionists or not, we are talking here about U.S. citizens—many of them our friends and neighbors.

Unfortunately, we can no longer count on such cooperation between our federal and state officials, or between our two major parties.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, a visiting fellow at the Hoover Institution and a former official in the U.S. Department of Justice.

Robert Delahunty is the Le Jeune Professor of Law at the University of St Thomas in Minneapolis and a former official in the U.S. Department of Justice and the White House.

The views expressed in this article are the writers' own.