Legal expert: Using Federal troops domestically isn't unprecedented, but it comes with risk
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Late Sunday night, a U.S. federal judge blocked the White House from sending National Guard troops from Texas and California to Portland, Ore. It also blocked the use of Oregon's own National Guard troops.
President Donald Trump has deployed troops to Los Angeles and Washington, D.C., and threatened other Democratically-led cities over what he calls "out-of-control” crime. He has also authorized the deployment of 300 national guard troops to Chicago.
MPR News host Clay Masters spoke with University of Minnesota Law Professor Jill Hasday for more context around these developments.
Press play above to listen to their conversation, or read a transcript below, edited for time and clarity.
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What is the legal precedent President Trump is using to deploy the National Guard to cities like L.A. and Chicago?
The classic statute that presidents have relied on when using federal troops, which includes federalized National Guards, is something called the Insurrection Act. The Insurrection Act authorizes the president to deploy federal troops to quell domestic violence insurrections and rebellions against U.S. authority.
What's very interesting is that Trump has not been relying on the Insurrection Act. The Trump administration has relied on a statute enacted in 1903. It allows the president to call in the National Guard if there's a rebellion or danger of rebellion against the authority of the government the United States or if the President is unable, with the regular forces, to execute the laws the United States.
I think this approach appeals to Trump, because when you think more broadly about his immigration crackdown, he's often invoking the idea that undocumented immigrants actually constitute a military rebellion. So this is very much in line with that.
The Minnesota Star Tribune reported that senior White House officials had even discussed sending an elite army division, the 82nd Airborne, to Portland. Is there any precedent throughout history we can point to where the Army, not the National Guard, has been used domestically?
Federalized National Guard and U.S. military, those are both federal troops. But, in fact, under the insurrection act, presidents have deployed actual active-duty military. For instance, the last time was during the first President Bush administration. He invoked the Insurrection Act in May 1992 in response to civil unrest after the acquittal of the officers accused of beating Rodney King. In addition to federalized national troops, he also deployed active-duty Army and Marines to Los Angeles.
That incident, I think, illustrates some of the dangers of using the military for civilian law enforcement. At one point, the Marines and the police are called to respond to a domestic disturbance at a local house. When the officer arrives, someone in the house shoots a shotgun, the policeman yells, “Cover me,” and starts to head into the house.
In police speak, “Cover me” means, “Hold your fire, but be prepared to shoot if something goes on.” In Marine world, “Cover me” means, “Provide me with cover using blanket firepower.” The Marines respond, as they've been trained to do, by shooting 200 bullets into the house. It's a good illustration of how the police and the military operate according to different rules.
There have been legal challenges to the President's use of troops across the country. Do you think it's likely we could see a National Guard deployment in Minneapolis?
There are no natural limits to this argument. If the Trump administration wanted to send troops to Minneapolis, it's not clear to me what would differentiate Minneapolis from Portland.
One of the founders’ greatest fears was that the military would be deployed internally. You can see a lot of evidence of that in the Constitution.
For example, the founders were deathly afraid of a standing army. That's why military appropriations are only for two years at a time. The founders were afraid of tyrannical control over the army. That's why they divided national security authority between the President and Congress, because the founders realized that the military could potentially be such a threat to democracy, that they were looking for any way they could think of to place limits on its ability to reach within the United States.
