Mr. Trump, Don’t Deploy the Military to American Cities without Their Consent

We live in a time when it is commonly assumed that the President of the United States ought to intervene everywhere — both domestically and globally — and solve every problem. The fact these interventions rarely solve any problems of any kind is apparently of little importance. What matters is that the president “do something!” and that “something” usually involves more regulation, more surveillance, more government spending, and — in the worst case scenarios — more government troops and federal agents unleashed upon both Americans and foreigners.

With looting and riots raging in a number of American cities, we’re now hearing the familiar calls for the federal government step in and “do something.” This time, it’s a call for the president to send in American troops to pacify the cities. Even if over the objections of the state governments in the affected areas.

For his part, the President has already threatened to do this. Earlier this week, Trump declared “If a city or state refuses to take the actions necessary to defend the life or property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

Can Presidents Deploy Troops Anywhere He Wants in the US?

It’s hard to guess whether or not this is actually imminent.  When it comes to Trump and troop deployments, it’s always quite difficult to know how much is a real plan, and how much is just bluster. In any case, the President is being cheered on by some conservative pundits.

For example, Andrew McCarthy at National Review has taken to comparing the current riots to terrorism, and as such, claims this justifies unilateral action on the part of the president. McCarthy claims the Insurrection Act (first passed in 1807) empowers the president to do this regardless of what the states think:

One effect of the Insurrection Act and its amendments has thus been to bolster the power of the federal government to respond to domestic terrorism. Although the Constitution calls for a state to request federal assistance to combat domestic violence before the president acts, that condition is more apparent than real.

As already noted, Article IV endows the president with unilateral authority to put down insurrection and invasion. “Insurrection,” of course, is a violent uprising against the authority of the state. Therefore, it encompasses the concept of broad-scale domestic violence. The Insurrection Act codifies this reality by expressly empowering the president to suppress domestic violence and conspiracies to carry it out.

Similarly, Tucker Carlson declared “good for him” when Trump announced his intention to unilaterally send troops into American cities. Carlson didn’t even attempt a legal justification. He relied instead on a puerile analogy equating the president of the US with a “father” who must watch over his family. Political leaders “watch over the people in their care,” Carlson insisted, “it’s what families need from their fathers. … Presidents save countries. That’s their job, that’s why we hire them.”

The implication, of course, is that presidents are therefore justified in employing any means necessary to impose this “safety.”

The strategy being used by both McCarthy and Carlson here is quite familiar, and dangerous: assert the nation is in crisis, and then demand the state be handed new and enormous powers to “solve” the problem. McCarthy compares the riots to “insurrection” and “domestic terrorism.” Carlson concludes military intervention is necessary to fight “the rise of extremism.”  This language is carefully chosen to ensure maximum power for the state, and minimal resistance.

Why States Ought to Have a Veto on Federal Deployments

At the core of the problem, legally and morally speaking, is the demand from pundits that the president ought to be able to deploy military units domestically without the legal impediment of requiring state cooperation.

This is quite contrary to the intent of he American revolutionaries, and those who ratified the US constitution. These men thought they were creating a political system where the bulk of land-based military power would rest in the hands of the state governments. Standing armies were to be strenuously opposed, and the Declaration of Independence specifically condemns the King’s use of military deployments to enforce English law in the colonies and “to render the Military independent of and superior to the Civil Power.” These principles go back at least as far as the English civil war when opposition to standing armies became widespread.

Thus, any attempt to send in British troops without the approval of the colonial legislatures was an abuse. This same principle was later applied to the state legislatures in relation to federal power.

Although McCarthy claims Article IV of the Constitution provides the president with unilateral power in this regard, McCarthy is wrong. According to William C. Banks in the Journal of National Security Law and Policy:

Article IV, Section 4 of the Constitution obligates the federal government to guarantee a “Republican Form of Government” to each state (the Guarantee Clause), to protect the states against invasion (the Invasion Clause), and to protect them against “domestic Violence,” but only after a request from the governor or legislature (the Protection Clause).  … In the view of the Framers, military force could be used to enforce federal law, but only when the threat to the nation is especially grave, such as acts of treason amounting to war. …However, in the event of “domestic violence,” less dire sets of circumstances more likely to be the by-product of a natural disaster, a lesser terrorist attack, or a public health emergency created by one or the other of these events, the Constitution presumes that the states can meet the challenge with their own law enforcement resources, supplemented by local militia, or in modern times the state-deployed National Guard. The state legislature or governor must request federal military support before it is provided.

Indeed this tradition, when transplanted to America, decentralized the militia power far beyond the modern notions of the National Guard. Throughout the nineteenth century, it was assumed that the “militia” consisted of most able-bodied men with guns. As noted by Marcus Cunliffe in his book Soldiers and Civilians, the US has a long history of creating militias at the state and municipal levels that were hardly positioned to be nationalized and deployed based on the whims of the US president. Yet this was, for all practical purposes, all the federal government had at its disposal. The remarkably small size of the permanent federal army prior to the twentieth century meant the militias formed the bulk of any potential domestic military force. Thus, in practice, the maintenance of domestic tranquility was assumed to be the work of highly decentralized and locally-controlled militia personnel.

The US Civil War greatly weakened these protection against unilateral federal invasion, yet even after Reconstruction it was assumed the states themselves should continue to have considerable power in opposing federal control of deployments within the states.

The Bush Years: New Efforts At Expanding Presidential Power

Not surprisingly, however, the so-called war on Terror upset what remained of these protections. The Bush Administration in 2006 sought further revisions granting even more leeway to presidents seeking to deploy troops within US states. According to Banks, the 2006 revision:

expressly permits the President to use the armed forces, including the National Guard in federal service, to “restore public order and enforce the laws of the United States” when he determines that “as a result of a natural disaster, epidemic or other serious public health emergency, terrorist attack or incident, or other condition, domestic violence occurred to such an extent that the constituted authorities of the State . . . were incapable of maintaining public order. …In essence, the amendment inserted a new set of conditions into the Insurrection Act that permit the President to deploy the federal military to a state without waiting for a request from the affected governor. The traditional presumption against the federal military presence in the states was replaced by a presumption in favor of the military role if certain conditions occur.

All fifty state governors opposed these changes as a usurpation of the authority of state governments. So constitutionally problematic were the new provisions, in fact, that the changes were repealed in 2008.

[RELATED: “When State Governors Tried To Take Back Control of the National Guard” by Ryan McMaken]

Regardless of what the politicians and judges think, though, the moral foundation of these provisions remains the same: self-determination, subsidiary, and the need for checks against centralized military power all inveigh against the ability of presidents to unilaterally send troops wherever he wishes.

Answering the current call to have the president deploy federal troops even over the objections of the affected states themselves would put a final nail in the coffin of the 400 years of classical liberal opposition to standing armies while making a mockery of yet another provision of the Declaration of Independence.

None of this is to say state governors are doing a bang-up job when it comes to protecting the lives and property of the citizens of their states. But this is hardly a new development. Many state governments have been routinely and daily involved in violating the basic human rights of residents at an accelerating rate ever since the COVID-19 lockdowns began. Businesses have been effectively expropriated. Residents have been denied medical care. Many have been attacked by police and arrested for the “crime” of not staying at home.  But just as those enormous failures of state policy do not warrant the federal takeover of state governments, neither do the riots currently raging in some American cities. If every problem demands a federal response, why even bother with having states anymore? Surely our great “father” in Washington, will “watch over” us and “save” us as Tucker Carlson imagines. What could go wrong?