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WASHINGTON — Even President Trump’s Pentagon chief thinks using the U.S. military to tamp down unrest in American cities sounds like a terrible idea.
But others are urging Trump to follow through on the bombastic threat anyway, including Republican Sen. Tom Cotton from Arkansas, who wrote an OpEd in The New York Times begging Trump to “send in the troops” to stop the “orgy of violence.”
If Trump takes that advice, he’ll instantly have another fight on his hands — with an army of lawyers.
Governors and mayors around the country declared themselves outraged by Trump’s threat to unilaterally deploy the military to their states and cities and blasted the idea as an illegal, dangerous provocation. Some are gearing up to fight the president all the way to the Supreme Court if his big talk turns out to be more than an empty boast.
Most legal experts think Trump would probably win that legal rumble. But that’s not guaranteed. The details matter, and some important limits exist on what Trump could order. Even if Trump sends in troops, they can’t simply just start shooting looters. And the timing of any legal challenge would be crucial.
Here’s what you need to know about whether Trump could deploy, say, the 82nd Airborne to the streets of Chicago, and whether anyone could stop him.
Can Trump do it?
The short answer is, yes, but he’d face a lot of pushback.
His best legal option is to invoke the Insurrection Act of 1807, which allows the president to override the general ban on using the military as domestic police in the Posse Comitatus Act of 1878.
The Insurrection Act clearly lets Trump send in soldiers to a state if the governor actually wants them. But it also lays out two options for Trump even if the governor doesn’t.
First, if unrest blocks the enforcement of any federal laws, Trump can deploy troops to deal with “unlawful obstructions, combinations, or assemblages, or rebellion.”
Second, Trump can put down “any insurrection, domestic violence, unlawful combination, or conspiracy” that’s interfering with either federal or state law, and a Constitutionally protected privilege.
States would fight him
But states and cities are calling bullshit.
“What he's suggesting is illegal,” insisted Illinois Governor J. B. Pritzker. “It would be ridiculous and unprecedented.”
Lawyers for the states might try to argue that Trump doesn’t have the right to deploy soldiers to enforce state laws if local officials don’t want them to be enforced by federal troops. That’s the argument that New York Attorney General Letitia James hinted at in an MSNBC interview Tuesday night.
“President Trump cannot legally use the armed forces to enforce state law,” James said. “Trump’s statements and tweets make it clear that his intention is for military personnel to enforce state and local criminal laws, such as curfews and theft and vandalism.”
It’s not clear whether that would fly in court. But if the states move quickly, time might be on their side — even if they lose in the end.
The Insurrection Act says Trump has to give a warning before he sends in the troops, to allow “insurgents to disperse and retire peaceably to their abodes within a limited time.”
It doesn’t lay out a timetable. But states might have a window to secure a temporary order blocking the military deployment from a lower court, and argue they at least need to hash all this out first.
That might just stall Trump while the courtroom battle plays out — until the protests have wrapped up anyway.
There are limits
Trump famously tweeted that “when the looting starts, the shooting starts,” echoing a controversial Civil Rights-era Miami police chief.
But the military would not be able to open fire on anyone just for looting, since their conduct would be governed by the Standing Rules for the use of Force (SRUF), according to Mark Nevitt, a professor of military ethics and law at the United States Naval Academy.
Those rules are issued by the chairman of the Joint Chiefs of Staff and would be specific to the mission. But some basic principles remain constant, including that on this kind of domestic mission troops couldn’t just start firing unless their lives were in serious danger.
“Using deadly force aggressively to stop looting clearly violates the governing rules for the use of force, principles of de-escalation, and the principles of using only minimum force, as a last resort,” Nevitt wrote in an article posted to the Just Security blog.
That would put them in the position of largely backing up the local cops — which might get downright awkward, or difficult, if the local officials don’t actually want them there.
That gives states another option: to simply stop cooperating.
“The president doesn’t have the authority to order the governors to provide housing or food for the soldiers, or to order his police to cooperate with them,” said Steven Schwinn, a law professor and Constitutional scholar at John Marshall Law School in Chicago.
In the end, though, Trump might just be bluffing. He has a long history of making big threats and empty promises that come to nothing.
“I just don’t think he’s got the stones to order the invasion of an American city,” said Frank Bowman, a former prosecutor and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.
“But you’ll notice an element of uncertainty in my voice,” Bowman said. “Because, who really knows?”
Cover: Active duty Army Medical personnel are seen walking to the Jacob K. Javitz Convention Center where a makeshift hospital has been set up to treat patients with COVID-19, New York, NY, April 5, 2020. (Anthony Behar/Sipa USA)(Sipa via AP Images)
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