Connecting state and local government leaders
But the Insurrection Act does give the president authority to deploy troops domestically.
Democratic state and local leaders are bristling at President Trump’s suggestion that he might deploy military troops into U.S. cities to stop riots and other unrest sparked by the death of George Floyd, a black man who died after a white Minneapolis police officer kneeled on his neck for over eight minutes.
Thousands of people have taken to the streets in cities across the U.S. in the past week to protest—many of them peacefully. But the demonstrations have also seen violent clashes between police and civilians, looting and vehicles and structures set on fire.
As of Monday morning, 23 states had activated about 17,000 National Guard soldiers and airmen in response to civil disturbances. These personnel are in addition to about 45,000 Guard members who’ve been activated to help states handle the coronavirus outbreak that has gripped the nation since the early spring.
Trump, during a speech from the White House Rose Garden on Monday night, urged every governor to deploy the National Guard “in sufficient numbers that we dominate the streets.”
“Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled,” the president said. He then went on to say that if a city or a 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.”
These comments elicited pushback from some state and local officials.
“Thank you, but no thank you,” New York Gov. Andrew Cuomo, a Democrat, said during an interview on CNN when asked about Trump’s pledge to use the military for law enforcement.
“Do you have any in these situations people who exploit the moment and people who have criminal activity and looting and extremist groups that pose anarchy? Yes,” said Cuomo. “But, the protesters themselves have been making a very valid point, wake up America, we're killing people based on the color of their skin.”
In Washington state, Gov. Jay Inslee, also a Democrat, said that Trump "has repeatedly proven he is incapable of governing.”
“His admiration of authoritarians around the world should not allow him to violate 200 years of American tradition of local law enforcement. We have activated the National Guard in our state and made them available to any community who requests it,” Inslee said.
"Our country is defined by our collective character and democratic ideals, not by reactionary calls for division and not by threatening Americans with their own military,” he added.
In Seattle, another site of protests and unrest, Mayor Jenny Durkan called into question whether Trump had the authority to deploy troops in the way that he had described. “We welcomed the National Guard over the weekend who have helped in unarmed duties with support and logistics as we deal with the effects of time of civil unrest and the bad actions of a few,” she said in a statement.
“But let me be clear: no U.S. Military troops are needed nor will they act as police in Seattle,” she added.
Critics of the local police responses to demonstrations over the past week have particularly flagged the “militarized” equipment and strategies of many officers, saying this in itself creates an antagonistic relationship with protesters already angry about police treatment of citizens, particularly black people.
Several experts who spoke to the Marshall Project said the police deployment of riot shields, tear gas and rubber bullets—which have been used by many departments around the country—was potentially helping provoke a violent response from protesters.
In Washington, D.C., city leaders criticized the Trump administration for ordering that protesters in a park near the White House be cleared on Monday night with smoke canisters and other force before his speech and a subsequent walk across the street for a photo-op in front of a church. City officials said federal law enforcement was in charge of oversight at the park.
On Tuesday, D.C. Mayor Muriel Bowser said the city was opposed to the use of armed military and National Guard being deployed on city streets. The mayor said that D.C. asked the National Guard for checkpoints around the city's perimeter, but hadn't requested an armed guard for any purposes in the District.
Metropolitan Police Department Chief Peter Newsham said local officials raised their concerns at meetings with federal authorities, but he acknowledged it was exclusively the president’s authority to deploy armed guard soldiers. The federal government has expanded authority in the District of Columbia because of the city's singular status.
“We made it known at every meeting in regard to this event that we did not want the National Guard to be armed,” Newsham said.
Legal scholars have said that Trump more broadly does have the legal authority to take over the National Guard or deploy federal military troops to the states under a law known as the Insurrection Act, a statute he has not actually invoked.
The law dates back to the early 1800s and has been invoked on dozens of occasions, according to a Congressional Research Service report updated earlier this year. But actions under the law became rarer after the 1960s, and it last came into play during 1992 riots in Los Angeles after the acquittal of police officers on charges that they beat Rodney King, the report also notes.
Stephen Vladeck, a professor at the University of Texas School of Law, recently noted on Twitter that historically the checks on a president using the National Guard or regular military troops for domestic law enforcement have been political, and that the Insurrection Act itself is relatively open-ended, leaving the president leeway to decide when to take action under it.
Past presidents have mostly used the act at the request of governors, according to Thaddeus Hoffmeister, a law professor at the University of Dayton. But he noted instances in the 1950s and 1960s where this happened against the wishes of governors and pointed out that the law does not require a president to seek permission from state officials before dispatching troops.
Hoffmeister said that if a governor objects to a president taking action under the law, they could try to fight back in court. But he noted that courts may be reluctant to hear this sort of case because they may see the issues raised as too political.
A big question hanging over the president’s comments and the Insurrection Act, Hoffmeister explained, is: What is the standard for a president to decide to send federal troops to enforce domestic laws or to federalize the National Guard?
Federal lawmakers attempted to spell this out to some extent by amending the law back in 2006 in the wake of Hurricane Katrina. But that measure was later rescinded.
In Hoffmeister’s view, the standard for a president invoking the Insurrection Act should be higher if it does not come in response to a governor’s request, or comes without their approval.
“What is that standard?” he said. “That’s the concern that people have.”
“We have a checks and balance system, and we want to have each entity with their own power base and structure," Hoffmeister added. "You don’t want to consolidate all that into one branch of government or one person.”
Staff writer Andrea Noble contributed to this story.
Bill Lucia is a senior reporter at Route Fifty and is based in Olympia, Washington.