Can President Deploy Federal Troops? [Opinion]

The Ninth Congress passed the Insurrection Act and President Thomas Jefferson signed it into law on March 3 , 1807. The law has been amended just three times, most recently in 2007.

It is difficult to discuss the Insurrection Act without a mention of the Posse Comitatus Act of 1878. The two acts have some overlap. They both limit the power of the federal government to use federal military troops to enforce domestic policies within the United States.

Our National Guard has dual status. It falls under the control of governors of the states and the U.S. territories. The District of Columbia National Guard reports directly to the President. The President may federalize the National Guard but cannot activate the State Guard. Confused? You are not alone.

The State Guard is exclusively controlled by the governors in states that field the State Guard units. It is true that National Guard personnel may be used in a state response in a law enforcement capacity.

The Coast Guard has had federal law enforcement authority since 1915. So, its ability to enforce federal law on our fellow citizens is not in question.

What does the President have to do to use federal troops under the Insurrection Act? His first step is to issue a proclamation. In that proclamation he must order “insurgents to disperse.”

Presidents have invoked the act only 19 times in our nation’s 243-year history. On six occasions, the governors never requested the action but federal troops were sent in. Governors have asked the President to invoke the act on 13 occasions and the federal troops were sent in, according to national and historic records.

Since June 4 when President Donald J. Trump announced he would send in federal troops no such proclamation has been issued. It does not appear, at this point, the President will issue that proclamation.

The unlawful and unforgettable death of George Floyd at the hands of the police in Minneapolis, Minnesota has inspired  many lawful protests. These lawful and peaceful protests across the nation are no cause for the invocation of the Insurrection Act. Peaceful demonstrations are a part of our First Amendment rights.

However, it is the unlawful attacks against police, innocent bystanders, disobedience of directions to peacefully disperse, occupation of police stations, the damaging of historic courthouses and buildings, looting, theft,  fire bombings of businesses, setting fire to police cars, and the destruction of public property that have our local and state police overwhelmed.

Governor’s deployment of National Guard troops in 23 states helps support the cities in restoration of the peace.  Some 17,000 members of the National Guard’s 480,000 troops have been called up.

Some 463,000 members of the Guard are doing other duties such as serving overseas, fighting wild land fires, responding to floods, the coronavirus, training, flying rescue missions, and training at weekend drills.

The President has the absolute authority to send in federal troops. Past precedence has been established since Thomas Jefferson, our third President, was first to use the Act.

Legal and constitutional scholars can disagree on the subject and litigation may weave its way to the U.S. Supreme Court. But it looks like those following past precedence would concede he can send in federal troops.

America needs to heal.  Next we must address the concerns of those who are the victims of a very small number of those heavy-handed federal, state, county, and city peace officers. Reforms are going to be needed to department policy and directives. More education and training will be required at academies and in annual refresher training in the field. Enhanced screening during pre employment.

We must also address the need for peaceful and lawful protests as guaranteed in the First Amendment to the constitution. Destruction of private businesses, looting, firebombing, and injuring police officers defeats the purpose of the demonstration and turns the demonstration for peace and change into a riot.

Civil rights and peaceful demonstrations are two inseparable qualities. Riots turn those who are with you into those who can’t support the unruly and dangerous behavior anymore than we can support the killing of George Floyd.