Could President-elect Donald Trump use the military in the United States to quell protests on college campuses, patrol the southern border, and carry out mass deportations? By calling rebellion law — a little-known law that gives the president broad powers to deploy troops on U.S. soil — he schedule Just to do that.
You need to take action now This is to ensure that the law does not become President Trump's most dangerous weapon.
of Posse law It is generally considered a crime for the military to engage in domestic law enforcement. However, the Insurrection Act appears to create a significant exception to this rule, giving the president broad powers to deploy troops on American soil. Historically, it has been invoked sparingly and responsibly. 30 times 230 years since its founding. The most famous act is valid Presidents Dwight D. Eisenhower, John F. Kennedy, and Lyndon Johnson desegregated Southern schools and led civil rights protesters to enforce court orders over the objections of state officials. protect
But at a moment when our democracy is at stake, when our next president openly proclaims his potential; authoritarian ambitionit could become a legal mechanism for Trump (or any other president) to turn a constitutional democracy into a military state.
In 2020, President Trump wanted to send in the military to quell Black Lives Matter protests, but was unable to do so. I'm sure that's not the case by advisers such as Attorney General William Barr and General Mark Milley; President Trump promises to eliminate independent voices in his second term. Installing champions across governmentthere may be no one left to say no.
The Insurrection Act includes three triggers for military deployment. The former is relatively uncontroversial, as it requires an explicit request for military assistance from the state to quell the rebellion. But the other two triggers appear to give the president virtually unlimited power to deploy troops without the nation's consent or even against its wishes.
The language in the other two sections of the law is breathtakingly broad. One provision appears to allow the president to send in the military if “unlawful interference” makes enforcement of federal law “impractical.” The other goes further, saying it would authorize the use of military force to quell “domestic violence, unlawful unions, or conspiracies” that “oppose or impede” federal law enforcement.
Even more alarming, in addition to authorizing the deployment of regular troops and the federalization of the National Guard, the law also authorizes the president to deputize a “private militia.” In theory, President Trump could give federal law enforcement powers to the United States. Extremist group stormed the Capitol January 6, 2021, or Proud Boys.
Our military is trained primarily for overseas combat, not domestic law enforcement, which requires different rules of engagement and careful protection of constitutional rights. And coordination among federal troops, local police and state authorities becomes a logistical nightmare.
But all is not lost yet.
The Biden administration and Congress have about two months to change this dangerous law before President Trump returns to office. expertacross the political spectrumWe have proposed important reforms. Congress has strengthened the process for its use by explicitly narrowing the specific substantive circumstances in which the law can be invoked, by eliminating the private militia provision, and by, for example, requiring parliamentary approval or judicial review. It is possible to add the above check.
But even without Congressional reform, executive branch lawyers in the Justice Department's Office of Legal Counsel can show that the current language of the Insurrection Act is not as broad as it seems. In fact, OLC has long argued that the law's broad language should be read narrowly in conjunction with certain other constitutional provisions and historical practices. Now, facing clear threats to weaponize the law, the OLC will forcefully clarify these constitutional limitations while also seeking judicial review if the law's scope needs to be interpreted. Government officials should be provided with the necessary guidance.
First, OLC should emphasize that Congress enacted much of the law's broad language under its authority immediately after the Civil War. 14th Amendment. Because the Fourteenth Amendment requires state action, the Insurrection Act similarly allows the president to unilaterally deny federal rights unless state authorities actively deny federal rights or are completely powerless to protect federal rights. It is necessary to prevent the military from being dispatched to the United States.
Second, the OLC needs to set a high bar for military deployments that are not tied to the enforcement of specific court orders. Both supremacy clauseandArticle 4Article IV of the Constitution suggests that the president must demonstrate that there is a genuine breakdown of state and local authority, and that the law should be used only as a last resort.
Under this constitutional framework, President Trump's threats to use the military against demonstrators and illegal immigrants are clearly unjustified. These do not include the violation of constitutional rights by the state or the subversion of public authority.
The framers of our Constitution were deeply skeptical of standing armies and military involvement in civil affairs. They understood that pitting the military against the citizens was a hallmark of tyranny. It is deeply embedded in our constitution and tradition that civilian law enforcement, not military personnel, maintain domestic order in the event of invasion or insurrection.
Our military exists primarily to protect the nation from foreign threats, not to serve as the president's personal executive force for the American people. With four more years of a president who has flouted democratic norms and institutional constraints, we must use every legal tool available to us to prevent this extraordinary abuse of power.
Julian Berman is a Harvard University undergraduate and op-ed editor for the Harvard Crimson. Laura Dickinson is the Lyle T. Albertson Professor of Law at George Washington University School of Law.
