Flat White

Could Trump really call out the troops?

10 November 2020

4:49 PM

10 November 2020

4:49 PM

It is extraordinary to have to ask the question: can Donald Trump somehow use United States’ armed forces to stay in the White House?  

However, as the current President today sacked his Secretary of Defense, continues to not recognise the election result, and has previously deployed force in domestic situations, it is a sad but valid question.  

Presumably, Trump would look for pretexts or rationalisations for further deployment of armed force – as most coups at least superficially do.  

There would of course first have to be some physical incident for Trump to act on, be it renewed violent demonstrations or take-over by protestors of property or institutions such as vote counting centres or some specific situation that at least provides the political narrative on which to construct more direct interventions than Tweets. Presuming that is the case, the legal and institutional framework looks like thisand like many facets of the United States’ elaborate system of checks and balances, it is complex.  

First, it’s important to understand that the “armed forces” of the United States are complex. Broadly speaking, they can be fit into four categories:  

  1. The regular, full-time military which is the US Army, Navy, Air Force, Marine Corps, and Coast Guard;  
  2. The part-time or reserve branches of those services;  
  3. The National Guard – which is unique and will be returned to, and;  
  4. Armed personnel of various Federal Government agencies such as: the FBI; Department of Homeland Security; Drug Enforcement Agency; Bureau of Alcohol, Tobacco, Firearms and Explosives; Customs and Border Protection; US Marshals Service; Parks Police, and; dozens of others, including the Uniformed Service of the Secret Service which specifically guards the White House.  

For example, during the recent violent confrontations in Portland, the Federal personnel deployed were drawn from that final category of agencies under a Presidential Executive Order authorising the protection of “public monuments, memorials, and statues; government property; or religious property” and not requiring the consent of a state government. This precedent – of essentially over-riding the states’ role by decree – is critical to bear in mind for what could come next.  

Indeed, under the Constitution, the maintenance of law and order and the prosecution of unlawful actions are primarily state – not federal – responsibilities. However, beyond the new one created by Trump, there are some additional quasi-loopholes. Under the Insurrection Act and the Enforcement Act, a president can deem that a state is wilfully not maintaining public order and thereby trigger the use of federal forces. So, arguably, if a state is not protecting vote counts or procedures, that could be a pretext.  

President Eisenhower used this legislative path to enforce school desegregation in Arkansas in 1954, and it was also done with state consent during the LA riots in 1992. 

That’s about it. The use of regular, full-time military units (eg, not the National Guard) has few past examples, and there are major restrictions on what troops are allowed to do if they were to be deployed.  For example, the Posse Comitatus Act does not permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity. Namely, they’re not meant to do what police have power to do. So, in some respects, and beyond the issue of whether professional military commanders would ever consent to deployment, regular military may not suit the ends of someone engineering a coup.

Which brings us to the US National Guard, which in addition to being reserve units of the US Army and Air Force, is the only branch of the military, as opposed to federal law enforcement officers, with a specifically designated domestic role. The National Guard has dual command structure; generally speaking, these state-based units are under the shared control of both state governors and the president.  

And, that’s where it gets complicated. Historically, state-based National Guards usually get called up in one of two scenarios: by the president to supplement regular military in overseas situations, and by governors during “state emergencies” like hurricanes and storms or to reinforce local law enforcement. 

There are however other much less tested legal and operational scenarios for calling up the National Guard in a given State. These include: 

  1. The President declaring a national emergency; 
  2. The President considering that “unlawful obstructions, assemblages, or rebellion make it impracticable to enforce the laws of the United States in any state or territory.” 
  3. The President considering it necessary to suppress, in a state, any insurrection, domestic violence, unlawful combination, or conspiracy. 

Some of the President’s rhetoric and hyperbole comes scarily close invoking to some of the above rationales. 

That’s where we hit completely uncharted territory, such as the degree to which governors, other elected officials, and even the commanders of affected National Guard or other units would or would not share the President’s interpretations and thereby abide by relevant commands. 

Pete Shmigel has been a senior advisor to premiers and ministers. He served in the US Army.

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