President Donald Trump said in an address to the nation Monday that he has “strongly recommended” that governors deploy the National Guard in response to actions including “rioting and looting.”
Trump went on to say, “If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”
University of Texas at Austin law professor Steven Vladeck is an expert on constitutional law. He has been focused for days on the president’s power to use the military – which he differentiates from state National Guard troops – who answer first to state governors.
“The president could federalize these guard troops,” Vladeck said. “But at least he hasn’t yet.”
Vladeck said the harder, separate, question is whether the regular federal Army could be called in as well. Part of the question in that case is the application of the Posse Comitatus Act of 1878.
“[The Act] does make it a crime to use the military for civilian law enforcement. Unless Congress has specifically authorized such use of the military,” Vladeck said. “And the statutes that allow for the use of the National Guard in this context. And even a series of old statutes commonly known as the Insurrection Act, allow for use of regular federal troops in at least some circumstances to help restore order after these kinds of domestic disturbances.”
Key to this, Vladeck said, is that the military would be used in a policing not a war fighting capacity.
Vladeck said the last time a governor requested such action by the military was in 1992 during the Rodney King riots. But he said the president can deploy such a military force without a governor’s invitation.
“The president could theoretically rely on those authorities that don’t require state requests for assistance, I think would be very controversial politically for him to do so. But I don’t think it would be completely implausible legally,” Vladeck said.
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