Congress' tinkering with defense CMO likely to make things worse
Trump could use the military to restore calm — and advance his political agenda
The National Guard is stretched thin from the ongoing COVID-19 response. Adding additional Guard response to assist police in handling the nationwide civil unrest stemming from the death of George Floyd in Minneapolis further strains limited resources. President Trump has threatened to deploy the U.S. military - as he did at the southern border - if necessary to control unrest in the streets.
The ongoing demonstrations made for a busier-than-usual week of domestic issues for the president. On Monday, he called the nation's governors "weak" for their handling of urban riots, prompting Defense Secretary Mark Esper to tell the governors they need to "dominate the battlespace." That evening, Trump again condemned the riots, rioters and perceived ineptitude of the governors in an evening speech. In his comments, he threatened to deploy military forces. The combination of this political shaming from the president prompted several governors to rebuke Trump's narrative as incendiary. Illinois Gov. J.B. Pritzker took this a step further, telling CNN that he rejects "the notion that the federal government can send troops into the state of Illinois."
This is a curious statement from a governor with a law degree from the - wait for it - Pritzker School of Law at Northwestern University, and is anecdotal to the general lack of understanding of the nuances associated with deploying military troops in response to domestic incidents. The laws enabling the president to deploy U.S. forces on domestic soil have a long history in this country.
Think what you will about the wisdom of deploying active duty troops on U.S. soil to enforce laws; the merits of such a decision are for others to debate. The fact is, the president has the legal authority, vested in a 19th century law, to deploy troops on U.S. soil in the 21st century. And he has issued a warning to do just that. So, what is the president's most likely course of action?
The president has a number of legal vehicles to use the military to restore order in the United States. When Trump deployed the active duty military to the southern border in 2018 and 2019, the media and other talking heads claimed it was illegal. It wasn't. Now, the president is threatening to deploy troops to U.S. cities to quell civil unrest and the same people again are saying it is illegal. Again, it isn't.
The last president to invoke the Insurrection Act was George H.W. Bush, in response to the Los Angeles riots in 1992. Bush did so under the advice of Attorney General William Barr, who is again in that role under Trump. But doing so in an election year could tie Trump's decision to his political agenda, and that could go one of two ways.
In the first scenario, Trump invokes the Insurrection Act in red states led by Republican governors but not in blue states led by Democrats. Why? Because in this way Trump delivers a rebuke of his political opponents by withholding federal support - even if not requested - and leaving them to "go it alone" in their continued, and to date unsuccessful, attempts to disperse the rioters.
Deploying the armed forces to red states, to augment National Guard troops currently deployed and under command of the state governors, presumably would lead politically aligned red states to eventual order and stability. That means red states would be the first to restore order and begin cleanup efforts, while blue states would lag behind. Trump could cast this as a political victory; he and red state governors could praise themselves for being justice hawks and leaders in crisis while blue state governors would be seen as weak indeed in their continued struggle against violence and rioting.
In the second scenario, Trump invokes the Insurrection Act in both blue and red states where civil unrest persists but, whereas Trump leaves the National Guard under state control of the red state governors in this and the former scenario, in this alternative scenario he federalizes the National Guard in blue states with Democratic governors. Using the legal provision under Section 252 of the Insurrection Act, the National Guard would operate under Trump's control as the commander in chief, and not the governors.
In this way, Trump would usurp blue state governors' authority and control over their National Guard troops and assume command and control of the Guard forces under Title 10 U.S. Code. In most circumstances the Posse Comitatus Act would prevent troops in federal status from engaging in law enforcement functions, but with the invocation of the Insurrection Act, Trump could direct the would-be federalized National Guard troops to execute and enforce laws along with the active duty members of the U.S. military.
With this scenario, Trump, again presumably - and with the help of the military - would lead the states, red and blue, to restore order and justice. But by collaborating with red state governors and usurping blue state governors to get there, he thus would strip blue state governors of the credit for restoring order and could further the narrative of their weakness and passivity.
Federalizing the National Guard in response to civil unrest has occurred several times since the 1950s, though using the military - as the most trusted institution - to advance a president's political agenda is relatively unprecedented. But then again, much of what Trump does is unprecedented, so we shouldn't be surprised if it happens.
Ryan P. Burke, Ph.D., is an associate professor of military and strategic studies at the U.S. Air Force Academy, a nonresident fellow with the Modern War Institute at West Point, and a veteran Marine Corps officer. The views expressed here are his and do not reflect the official position of the United States Air Force Academy or the Department of Defense.