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What does the Constitution say about U.S. forces in domestic disturbances?


I’ve been focused this week on the possibilities for civil insurrection, when Trump and/or members of his family and associates are indicted, as I believe they will be, and an armed right rises up in indignation. I’ve fastened in particular on a quote from a radical extremist on Breitbart, who seems to feel the nation’s security forces would back up Trump if things get bad. “If we do have a civil war,” he wrote, “we will win. We have cops on our side, the army on our side and America loving patriots like trump on our side.” 

I’m sure many on the right believe this, but will they really have “cops [and] the army” on their side? Conventional wisdom suggests that uniformed men and women tend to be conservative and Republican. It is useful to wonder, though, how “cops” and “the army” might actually respond, and what the law tells them to do. Let’s start with “the army,” by which I include all U.S. service members under the control of the President: Army, Navy, Air Force, Marines, Coast Guard and National Guard. In the case of the latter, we think of National Guard troops as being under the control of a state’s Governor, but every member of the National Guard is also a member of the National Guard of the United States, so “when a Guardsman (or woman) is acting as a reserve of the federal forces, his [or her] commander-in-chief is the President.”

Clearly the President (and the Congress) have the power to commit U.S. troops overseas. But what about on our own soil? For that, you have to look at Title 10 of the United States Code, which “outlines the role of armed forces in the United States Code [and] provides the legal basis for the roles, missions and organization of each of the services as well as the United States Department of Defense.” This law is very explicit and explains exactly what the President can order troops to do, and what he cannot.

In general, Title 10 restricts, but does not forbid, the President’s power to deploy American troops domestically. (Obvious exceptions such as natural disasters and terrorist attacks are listed.) After Sept. 11, interest in Title 10 increased enormously, and Congress responded with revisions that have broadened the President’s ability to deploy troops in this country. In 2007, before Barack Obama became President, the law was expanded to include “insurrection, domestic violence, unlawful combination, or conspiracy” as conditions warranting deployment. A year later—still before Obama—the law was again amended by further defining “domestic violence” as “[violence that] has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.” Rather than clarifying the issue, though, this further muddled it: Who determines when local officials “are incapable of maintaining public order”? Meanwhile, Congress insisted on the right to be kept informed of such deployment, but there are also big loopholes in this process. The language says:

The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of the authority.”

Any determined President could argue that it is not “practicable” to notify Congress, citing emergency conditions; and it is not at all clear that the Congress or even the Courts could force the President’s hand.

Suppose that Trump is still in office when the insurrection occurs. Let’s suppose also that the Congress is still Republican-controlled. What would Trump do under these circumstances:

  1. There is fighting in and around the cities and suburbs of places like Portland OR, Atlanta GA, Austin TX, Seattle WA, Boston MA, Cleveland OH, Denver CO, Richmond VA, Washington D.C. and the San Francisco Bay Area?
  2. In conservative rural areas, armed groups of militiamen take over?

Theoretically, in both cases the President would have the authority to deploy Federal troops to quash the insurrections and control the violence. But let’s suppose further (it’s not so far-fetched) that the Mueller indictments have been issued and there are clear threats to the existence of the Trump regime. Might not an enraged, cornered Trump look over the scene, from his information-rich vantage point, to see which side was winning, and then, if it’s his, “shoot his wad” and take the plunge into civil war? He has already thrown his lot in 100% with the Breitbart-Bannon-tea party wing: people with a penchant for violence, who have declared their absolute resistance to any threat to Trump. Trump might allow the militiamen to retain control of their rural enclaves, tweeting that the militias are “patriots” safeguarding the Constitution. In the fighting around cities, Trump might decide that if heavily-armed right wing groups appear to be getting the upper hand over liberal “blue” forces, he would stand aside, and let the process play out. If, on the other hand, liberal “blue” forces started winning—say, in sanctuary cities—Trump might well decide to intervene by sending in Federal troops to crush them.

Trump might or might not notify the Congress if he decides to deploy his troops domestically. Either way, Republicans would be in roughly the same position they find themselves in now: Should they support a Republican President under any circumstances, even when he appears to be circumventing the law for his own purposes and plunging the nation and the world into total chaos? Or should they put country before party and form a coalition with Democrats to invoke Article 25 of the Constitution?

Of course, all this might be moot if Trump decides to launch a major war by nuking North Korea.




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