In the aftermath of the tragic killing of George Floyd by a Minneapolis police officer, riots and unrest have been spreading throughout the city of Minneapolis and the country. The Minnesota National Guard has been activated by Minnesota Gov. Timothy Walz. These Minnesota National Guard members report to the governor and can actively take part in law enforcement functions, which they are doing.
But now, President Donald Trump is involved too.
The president tweeted Thursday night that
he can’t stand back & watch this [the riots] happen to a great city, Minneapolis. A total lack of leadership. Either the Radical Left Mayor, Jacob Frey, get his act together and bring the city under control, or I will send in the National Guard and get the job done right.
Further, Trump stated that he “just spoke to Governor Walz and told him that the Military is with him all the way. Any difficult and we will assume control but, when the looting starts the shooting starts … ”
Beyond their deeply troubling moral messaging, there are two key legal issues associated with these remarkable tweets (outside of Trump’s showdown with Twitter, which placed a warning on the tweet, saying it glorified violence):
• Under what conditions can the president order the military to respond to Minneapolis?; and
• What are the military’s rules for the use of force—i.e. does looting justify shooting?
Can Trump use the military to respond to Minneapolis? Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act. The president is, of course, the commander-in-chief of the Armed Forces, but he lacks the authority to use the military in any manner that he pleases. That authority is constrained by Congress and the courts.
Under the 1878 Posse Comitatus Act, Congress has limited the president’s ability to use the federal (title 10) military in domestic law enforcement operations such as searches, seizures, and arrests. A criminal statute, the Posse Comitatus Act makes it unlawful for the Army or Air Force to “execute the laws … except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So, the president cannot simply call in federal military forces or nationalize the Minnesota National Guard to quell the civil disturbance in Minneapolis without pointing to a Posse Comitatus Act exception.
The Insurrection Act is, by far, the Posse Comitatus Act’s most important exception. This is the legal key that unlocks the door to use federal military forces—whether through federalizing the National Guard or calling in “title 10 forces” to quell civil unrest. Dating from 1807, there are three key Insurrection Act provisions worth addressing.
First, a state legislature or governor could request assistance from the president under 10 U.S.C. § 251 “to suppress [an] Insurrection.” It states, in full:
If there is an insurrection in a State, the President, at the request of the State’s legislature, or Governor if the legislature cannot be convened, may call National Guards of other States into Federal service as well as use the Federal military to suppress the insurrection.
This authority was invoked in May 1992, when California Gov. Pete Wilson turned to the Insurrection Act in requesting federal military assistance from President George H.W. Bush. This was in response to the Los Angeles riots, after a jury acquitted the officers involved in the arrest and beating of Rodney King. In requesting federal troops to patrol Los Angeles, Wilson specified that the California National Guard lacked the ability to quell the domestic disturbance. Shortly thereafter, Bush issued an executive order, which authorized the defense secretary to federalize the California National Guard and deploy active-duty Army and Marine personnel from bases in California to the scenes of the riots.
Will the Minnesota governor or legislature seek federal military assistance? It appears unlikely at this time. The Minnesota legislature is controlled by the Democratic-Farmer-Labor Party and Walz is a member of the DFL. Besides their political differences, states have historically been reluctant to request this authority—Gov. Kathleen Blanco of Louisiana requested that the Louisiana National Guard, under the control of Lt. Gen. Russell Honoré, remain under state authority in the aftermath of Hurricane Katrina.
But there are two Insurrection Act provisions that can be invoked by the president irrespective of a state’s request or underlying desires. Ironically, presidents have actually relied upon these provisions to uphold civil rights and protect the rights of minorities in the Deep South during the 1950s and 1960s.
The Insurrection Act authorizes the president to deploy the military (federal or state) whenever he believes it necessary “to suppress an insurrection, domestic violence, unlawful combination or conspiracy.” The full body of this provision states:
Whenever the President considers that unlawful obstructions, combinations, or assemblages or rebellion against authority of United States makes it impracticable to enforce the law of the United States in any State or territory by judicial proceedings, the President may call into Federal service the militia of any State and use the Federal military to enforce the laws or suppress the rebellion.
Third, the president can use the armed forces when there is an interference with federal or state law. The most generalized provision, its precise scope also remains largely untested. The president may use the military to suppress insurrection, domestic violence, unlawful combination or conspiracy if
(a) it so hinders the execution of law of that State and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it opposes or obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.
Finally, prior to invoking the Insurrection Act, the president, with the assistance of the attorney general, must first issue a “proclamation to disperse.” These final two provisions were invoked occurred in the 1950s and 1960s, when presidents used them to enforce civil rights laws and end segregation in the South. Presidents Dwight Eisenhower and John Kennedy used these provisions in Arkansas, Alabama, and Mississippi to enforce civil rights laws. Kennedy invoked the interference with federal law provision to send federal military troops to Birmingham, Alabama during the civil rights protests.
In sum, invoking the Insurrection Act remains a rare occurrence in U.S. history, used in the most extraordinary circumstances, such as the complete disregard for enforcing federal civil rights laws or massive unrest in the nation’s second largest city. Despite the Insurrection Act’s invocation in Los Angeles, it has not been used in 28 years. And it was not invoked in Ferguson, Missouri. Nor was it invoked in Baltimore, Maryland during the riots that occurred in the aftermath of the death of Freddie Gray, who was killed by police officers in 2015. Nor was it invoked in the aftermath of Hurricane Katrina. Finally, it remains unclear whether the invocation of these two provisions are subject to judicial review. Courts have historically been reluctant to wade into these complex federalism and separation of powers waters and will certainly be wary of providing specific guidance.
What are the rules for the use of force? Does looting justify shooting? No. Federal military forces responding to civil unrest comply with Standing Rules for the use of Force (SRUF). These rules are generally less permissive than Standing Rules of Engagement (SROE) that the military uses in operational environments overseas and more traditional military missions. Both sets of rules are promulgated via the chairman of the Joint Chiefs of Staff and tailored to the individual mission. To be sure, these rules governing the use of force are policy guidance, but they reflect the complex strategic, legal, and morality issues that are in play whenever the U.S. military uses force on our own soil.
While the rules of force for a military domestic operation will be tailored to the unique mission in coordination with the state law enforcement agency and governing state law, certain core principles remain constant. For example, force is to be used only as a last resort, and the force used should be the minimum necessary. Further, deadly force is to be used only when all lesser means have failed or cannot be reasonably employed.
Of course, the rules for the use of force do not limit the inherent right of self-defense of people. It also authorizes force—to include deadly force—to protect three specified assets: (1) assets vital to national security (such as nuclear command and control facilities); (2) inherently dangerous property (such as missiles, rockets, and explosives); and (3) national critical infrastructure (such as designated public utilities). None of these appear to apply in Minnesota.
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.
The unrest following the death of George Floyd is a rapidly developing situation. Answering these two questions: when the president can use military forces to quell unrest and when they can use force are critically important, especially because the president appears intent on stoking division.
The views expressed here are the author’s personal views and do not necessarily reflect those of the Department of Defense, the United States Navy, or any other department or agency of the United States Government.
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