Can President Trump Really Order Troops Into Cities?

By Jeffrey Toobin, The New Yorker

02 June 20

n his speech in the Rose Garden on Monday evening, President Trump said, “If the 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.” Can he do that? Can the President send the U.S. military into a state, even when the governor of that state doesn’t ask for its assistance, or even if the governor actively opposes such a step?

The answer is no, probably. The reasons relate to a venerable principle in American law: that the military should stay away from actions on domestic soil. One of the founding principles of the Republic was that the federal military should not be involved in domestic law enforcement. But, over the years, the law has carved out certain narrow exceptions to that rule, notably in the form of the Insurrection Act, from 1807. This law says that “whenever there is an insurrection in any state against its government, the President may, upon the request of its legislature or its governor,” call in the armed forces. So that seems pretty simple. The President can bring in the military only if a governor or a state requests it. In recent years, the law has been invoked only when governors have requested the assistance of federal troops, such as in 1992, when California sought help in quelling the rioting after the acquittals in the Rodney King case. (Similarly, in 1967, Governor George Romney, of Michigan, requested federal troops to control riots in Detroit.) Now, however, the governors of California, Illinois, and Michigan have all made it clear that they will not seek the involvement of federal troops in their efforts to handle disturbances in their states.

But that’s not the end of the story. There is another provision of the Insurrection Act that arguably gives the President greater unilateral authority. This provision states that, when the President determines that there are unlawful activities which “make it impracticable to enforce the laws of the United States,” he may call in the armed forces. It was passed in 1956, in order to give Presidents the authority to enforce civil-rights laws. President Eisenhower invoked it to send Army troops to enforce the integration of the public schools in Little Rock, Arkansas, in 1957. It’s unclear whether the law, which was based on the protection of constitutional rights, would give Trump the authority he wants to overrule governors today.

In other words, there appears to be some ambiguity about the President’s authority to do what he promised to do. It may be, of course, that Trump merely wanted to threaten the use of the military without ever intending to follow through. On Monday, the President was governing by spectacle—ordering the clearing of peaceful protesters so that he could stage a photo opportunity with a Bible at a nearby church. The threat to send troops was a similarly showy gesture. Trump was trying to look tougher than the governors, but he didn’t take any actual responsibility for bringing calm to the country. If he were to send troops, the burden would be on him to show results.

In all likelihood, then, there will not be the clashes that the President’s remarks portend. He will not send troops into a state that doesn’t want them. But, in threatening to do so, Trump has shredded another norm. He has abused his power in yet another way, extending his legacy of lawlessness and authoritarianism, with more such abuses likely in the months to come.