The US Department of Defense has relocated 1,600 soldiers to Washington. US President Trump had announced that he wanted to use them in the protests against racism and police violence. But is he allowed to?
Following the announcement by US President Donald Trump that he wanted to use the military to stop the riots on the sidelines of the protests against racism and police violence, the US Department of Defense moved around 1,600 soldiers to Washington.
The military police and infantrymen are ready to intervene if necessary, a spokesman for the Defense Ministry said. Minister Mark Esper ordered the relocation of the soldiers, it said.
The AP news agency reported that the Department of Defense had drawn up contingency plans on how active military personnel could be deployed. According to the AP, Pentagon documents have shown that army soldiers should protect the White House and other federal buildings if the situation in the capital worsens and the National Guard cannot cope with the protection alone. The National Guard consists of reservists.
Trump announced on Monday that he would use "thousands upon thousands" of soldiers in the US military if the states and cities did not take decisive action against the riots. But can the US president even order the use of the military at home?
The Insurrection Act of 1807
The law, which Trump could use as the basis for his demand, although he has not yet explicitly invoked it, dates from 1807. This "Insurrection Act" allows the President to use the armed forces to riot under certain circumstances and bring unrest in the US under control.
The law was last activated in 1992 when serious rioting broke out in Los Angeles following an acquittal for four white police officers who brutally beat Black Rodney King. The then President George H. W. Bush acted at the request of the Governor of California and only after consultation with all parties involved.
One of the requirements for the Insurrection Act to operate is the inability or unwillingness of the affected state to end an insurrection or enforce federal law. In such a case, the president can call on the military to help enforce the law. Before doing this, he has to give the insurgents an ultimatum to withdraw or to bow to the law. Only if this requirement is not met can soldiers be deployed.
Does the president need the request of the states?
In some places, however, the Insurrection Act leaves room for interpretation. It is not clearly regulated whether the president can intervene militarily without the consent of a governor. Legal experts have different opinions on this.
Stephen Vladeck, an expert on national security and constitutional law at the University of Texas at Austin, reiterated on Twitter that the federal government does not necessarily need a request from the states for the use of the military. The Insurrection Act largely leaves the President to decide on the circumstances himself.
Eugene Fidell, who teaches military law at Yale Law School, sees it differently. "Without a request from the legislature or the government of a US state, I believe that this authority can only be lawfully exercised if the authority of the federal government is obstructed," he said, citing the example of Little Rock, Arkansas, as a soldier to give black students access to a school that the state illegally denied them.
Similar cases of blacks denied access to public buildings occurred in several southern states in the 1950s and 1960s. Kent Greenfield, professor of constitutional law at Boston College, sees an important difference compared to the current situation. The southern states refused to enforce federal law at the time – which the governors would not do in today’s riots that are cracking down on the riots.
Resistance from the governors
Trump’s announcement that he would use the military against protesters was followed by defense from democratically governed states. The governor of Illinois, J. B. Pritzker, told CNN that there was no way Trump could simply send soldiers to his state. "It’s illegal." He couldn’t imagine that any governor would allow that. Pritzker said Trump himself fueled racist tension every day. "The man is a racist. He has to go."
Most recently, the AP news agency reported that Trump appears to be refraining from a military operation inside. Reactions to demonstrations this week showed that local governments across the country are able to restore order on their own, said AP White House officials who wanted to remain anonymous.
Trump credited himself as a success that the demonstrations went on comparatively calmly compared to the previous days. "D.C. had no problems last night. Lots of arrests. Good job everyone. Overwhelming strength. Control," he tweeted after heavily armed National Guard units and federal police officers swarmed the city. He added "(thank you, President Trump!)".