No, Trump Can’t Order Troops to Wherever He Wants

Opinion|No, Trump Can’t Deploy Troops to Wherever He Wants

President Trump’s escalating efforts to deploy armed troops onto the streets of several American cities run by Democratic officials are raising a question courts have been all but completely able to avoid since the Constitution was drafted: Can presidents unleash the armed forces on their own people based on facts that they contrive?

The text of the relevant statutes doesn’t answer that question. But our constitutional ideals, to say nothing of common sense, should — and the answer must be no.

Contrary to some Trump critics, the president’s actions in Washington and Los Angeles as well as the developing situations in Portland and Chicago are not tantamount to imposing martial law. That’s only when the military supplants civilian government, not when it supplements it. Indeed, if there were consensus among officials and citizens that civilian authorities could not adequately enforce the laws, there would likewise be consensus that Congress has given the president the power to use federal troops — whether regular or federalized National Guard personnel.

The problem instead is that many Americans don’t believe the president’s claims. We look at pictures and videos out of Portland and we don’t see “war-ravaged” anything. We look at news reports out of Chicago and see the principal violence coming from federal officers — not being directed toward them. To put the matter directly, there’s a factual dispute about whether resorting to the military is justified. As Judge Karin Immergut (a Trump appointee) put it sharply in the Portland case, in which she ruled over the weekend that there was no legal basis for sending in troops, the president is acting in a manner that is “untethered to the facts.”

The Constitution’s drafters were not averse to domestic use of the military. One of the immediate catalysts for the 1787 Constitutional Convention had been the embarrassing inability of the national government to respond to Shays’s Rebellion — a relatively modest uprising that began in Western Massachusetts in the summer of 1786. That episode exposed for all to see the impotence of the government created by the Articles of Confederation — and it highlighted the need for a stronger, centralized federal executive. To that end, one of the powers the new Constitution expressly gave to Congress was the power “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”

When Congress first codified that power in 1792, there was little debate about the insurrection or invasion parts. Lawmakers’ concerns focused on when troops could be used for law enforcement. Their response was to authorize such deployments only when local authorities were unable or unwilling to enforce the laws themselves — and only when a federal judge or Supreme Court justice agreed with the president’s determination that those circumstances were present. (The statute they passed is the precursor to what’s known today as the Insurrection Act.)