If I were still teaching constitutional law, I’d use this situation as a case study: President Trump has decided to deploy troops to various cities. It’s a classic dilemma with no clear solution—there are compelling arguments on both sides, depending on the specifics and the shifting context.
There are, however, some solid conclusions to draw.
First, according to Article 2 of the United States Constitution, the President has the authority to send federal law enforcement to protect federal properties and personnel. He can assess, with limited judicial review, whether a risk exists. Local officials can’t hinder the proper exercise of these federal powers.
Second, it’s equally clear that the president cannot intervene in purely local problems like street crime, where no federal interests are at stake. The 10th Amendment and various laws place local law enforcement squarely in the hands of the states.
Third, the president holds more sway over Washington D.C. than over other municipalities, especially in light of the District of Columbia Autonomy Act of 1973.
Fourth, there are specific instances where the president may act—even without a direct federal interest. One such case is during a “rebellion.” Though, it’s worth noting, the law is murky. For example, what exactly defines rebellion? Who decides whether an insurrection is occurring? What role does the judiciary play in this determination?
The same uncertainty exists with the idea of “invasion.” While it might be somewhat clearer to define, there could still arise cases where, say, a dictator sends waves of undocumented immigrants to destabilize the region.
How do we legally define what is happening?
In democracies—especially those with a system of checks and balances—the question is almost always: who gets to decide? Our legal framework is built on the understanding that decision-makers can and do err.
So, who has the right to be wrong? In most democracies, particularly those with a unitarily parliamentary structure, that right typically belongs to the elected branch, the legislature. At the federal level, that’s Congress, as outlined in Article 1 of the Constitution.
However, since the Supreme Court’s ruling in Marbury v. Madison back in 1803, all legislative actions are subject to constitutional scrutiny. Even a majority of voters or Congress members can’t violate the Constitution.
And what if the Constitution is vague, contradictory, or ambiguous? I have a cartoon in my office depicting one of the framers quipping about using wishful thinking to figure out what’s constitutional.
When discussing the president’s power to deploy troops in cities against local officials’ wishes, the Constitution, in certain aspects, feels like wishful thinking. To paraphrase former Justice Potter Stewart regarding hard-to-define issues: you might not pinpoint it exactly, but you know it when you see it.
The same goes for the notion of rebellion. While it’s tough to precisely define ahead of time—except in extreme situations—it often becomes clear in practice.
The legal endgame here is also unclear.
Consider the Civil War—a clear instance of rebellion. In contrast, anti-Israel rallies on college campuses aren’t comparable. But what about violence in cities like Portland, where left-leaning protesters have gathered?
Some groups seem bent on inciting chaos, yet for now, they lack the widespread backing necessary for anything beyond violent protests. Should the president bide his time until these “insurrectionists” amass more support? Or can pre-emptive measures, like sending federal law enforcement, be justified? Is deploying the federal military acceptable?
These dilemmas are likely headed for the Supreme Court, which will probably delay reaching clear conclusions based on broad evidence. Until then, local judges might oppose the president’s actions, except concerning federal properties or protecting the capital.
The president intends to appeal, and the outcome in appellate courts will likely differ based on the specifics of each case.
In this complicated scenario, “wishful thinking” and “you’ll know when you see it” seem to be the best guiding principles for the time being.
