The Use of the Military in Domestic Affairs —Mackubin Owens, MINDSETTER™

The Use of the Military in Domestic Affairs —Mackubin Owens, MINDSETTER™

Is the military’s purpose to fight and win the nation’s wars or to engage in constabulary actions? What kind of wars should the military prepare to fight? Should the focus of the military be foreign or domestic? The United States has answered this question differently at different times and under different circumstances. For example, throughout most of its history, the United States Army was a constabulary force. It permanently oriented itself toward large-scale conflicts against foreign enemies only in the 1930s. The end of the Cold War and the attacks of 9/11 offered new answers (e.g., a focus on “irregular warfare”). The rise of China suggests a return to the use of military force in great power competition.

The question arose again in the summer of 2020 during which many large cities were rocked by large-scale looting, arson, and rioting following the unfortunate death of George Floyd at the hands of a Minneapolis police officer. Despite the loss of life and devastating damage to property, many mayors took a hands-off approach. Police forces stood down and in some cities, the rioters were even permitted to set up “autonomous areas.”

Some called for then-President Trump to invoke the Insurrection Act. Arkansas Senator Tom Cotton made the case in an op-ed for the New York Times. Trump threatened to do so but never followed through. Nonetheless, his opponents criticized him for issuing his threat and for using federal law enforcement to clear rioters from Lafayette Square after a famous church near there was torched. His position on domestic disorders elicited condemnation from a number of prominent retired military officers.

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  Although there are many reasons to limit the use of federal troops in domestic law enforcement, the fact is that they have been so used in many instances since the American Founding. Indeed, the US Army Historical Center has published three 400-page volumes on the use of the Federal military forces in domestic affairs.

The authority of the president to use force in response to domestic disorder arises from the Constitution itself. Section 4 of Article IV reads: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” Although The First Amendment to the Constitution guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” it does not protect riot, arson, and looting.

Under Article II of the Constitution, the president, as commander-in-chief of the Army and the Navy, and of the militia (National Guard) when under federal control, has the authority to act against enemies, both foreign and domestic. Of course, as a federal republic, the first line of defense against domestic disorder is local law enforcement, supplemented as necessary by the resources of the states, including the National Guard. But if mayors and governors are unable or unwilling to quell disorder, the federal government has the authority to act.

The president’s constitutional authority was supplemented by the Insurrection Act of 1807 by which Congress explicitly authorized the U.S. Army to enforce domestic law. Although intended as a tool for suppressing rebellion when circumstances “make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings,” presidents used this power on five occasions during the 1950s and 60s to counter resistance to desegregation decrees in the South. It was also the basis for federal support to California during the Los Angeles riots of 1992, when elements of a U.S. Army division and a Marine division augmented the California National Guard. More recently, active duty forces were deployed in response to Hurricane Katrina.

But what about posse comitatus? Doesn’t this limit the president’s authority? No. Quite the contrary. It does not affect the president’s power to use both regulars and militia to enforce federal law. Instead, it means that such troops cannot be used on the basis of any lesser authority than that of the president. Before passage of the Posse Comitatus Act of 1876, a federal marshal could deputize Army units to enforce federal law. But the use of soldiers as a posse removed them from their own chain of command and placed them in the uncomfortable position of taking orders from local authorities who had an interest in the disputes that provoked the unrest in the first place. As a result, many officers came to believe that the involvement of the Army in domestic policing was corrupting the institution.

Of course, some criticized President Trump for threatening to use the National Guard “against the will of state governors. ” But consider this example. After school integration was mandated by the Supreme Court in 1954, some Southern governors refused to execute the law. In 1957, Arkansas Governor Orval Faubus deployed the National Guard to defy federal authority by preventing the integration of a high school in Little Rock.

President Eisenhower responded by placing the Arkansas National Guard under federal control and deploying soldiers of the 101st Airborne Division to enforce the law. In view of the invective directed against President Trump for his threat to use federal troops to quell domestic disorder, it is interesting to note that, in a letter to Eisenhower, Democratic Sen. Richard Russell of Georgia explicitly compared soldiers of the 101st Airborne Division to Hitler’s “storm troopers.” As Russell’s response suggests, the argumendum ad Hitlerem is nothing new.