Could Trump send the army to cities like Cleveland if he wins the presidency? Legal scholars are searching for the limits of this ability

WASHINGTON, D.C. – During his tenure as President, Donald Trump repeatedly called for the use of the military to address the violence that erupted following the police killing of George Floyd in Minneapolis in May 2020 following a confrontation with Representatives of the Ministry of Defense who felt that this would be an inappropriate use of martial law.

Now he is seeking a return to the office with campaign site that promises he would not hesitate to send federal troops, including the National Guard, to “cities where there has been a complete breakdown of law and order, where the fundamental rights of our citizens are intolerably violated.”

Trump went even further during Fox News appeared last month. He discussed sending the National Guard and military to fight what he called “domestic enemies,” calling them more dangerous than foreign adversaries such as China and Russia.

As an example, he cited Democratic California U.S. Senate candidate Adam Schiff, who led the 2019 The House of Representatives is trying to impeach Trumpfor pressuring Ukraine to announce an investigation into former Vice President Joe Biden and his son Hunter while withholding nearly $400 million in aid. Schiff replied statement on social networks it said that “there will be no justification for such dictatorial behavior.” Except for dictatorial ambitions.”

But could Trump really punish his enemies and send the army into cities like Cleveland? Experts say it comes down to a centuries-old law that hasn’t been enforced in more than 30 years.

Ex-Trump Secretary of Defense Mark Esper said last month CNN he fears that if Trump becomes president again, he will try to use the National Guard and military against US citizens, as he discussed during protests over Floyd’s death in cities such as Chicago, Portland and Seattle in the summer of 2020.

In a 2022 book discussing his Trump administration, Esper quotes Trump asking, “Can’t you just shoot them? Just shoot them in the legs or something? during unrest. As Minister of Defense, Esper rejected Trump’s calls use troops to maintain law and order within the country, saying that this should be a last resort.

Esper recently told CNN that he doesn’t think Trump could use the military for law enforcement, without citing Act of Rebellion 1807which allows presidents to use reserve or active-duty military units to respond to unrest in the states. It was last used after riots broke out in Los Angeles following the 1992 acquittal of police officers in the beating of black motorist Rodney King.

“I think he tends to use the military in these situations, whereas I think that’s a bad role for the military,” Esper told CNN. “These actions should only be taken by law enforcement.”

Case Western Reserve University Professor of Constitutional Law Raymond Koo says the nation’s founders did not like the King of England, who controlled the United States before the Revolution, to have unlimited power to use the military, so they placed constitutional limits on the president’s ability to do so.

Because Trump will likely appoint subordinates in his next term who won’t question his decisions, and because many of the current U.S. Supreme Court justices were his appointees, Koo says he’s not sure Trump administration officials or the courts will try to exploit these restrictions are to fight back if Trump wants to use the military domestically.

Koo says he could have foreseen that Trump would send troops to quell protests in cities like Cleveland, as the Chinese government did in The Tiananmen Square massacre in Beijing in 1989.. He also said he wouldn’t be surprised if Trump tried to score political points by sending troops to expel Haitian immigrants from Springfield, Ohio, whose presence has become the focus of Republican campaign rhetoric. Koo says Trump’s description of political opponents as the “enemy within” is more than just dangerous rhetoric. He says it also challenges the very essence of democracy.

“I just hope that people will understand that these are not empty threats or something that can be completely written off as bluster,” Koo says. “When democracy fails, it is very difficult to come back and repair the damage.”

Harvard University law professor Jack Goldsmith, who served as assistant U.S. attorney general during the administration of Republican George W. Bush, describes the Insurrection Act “as a loaded weapon for any president because it literally has no checks and balances.”

Earlier this year, Goldsmith and New York University law professor and former White House adviser to President Barack Obama Bob Bauer led a bipartisan American Law Institute Group What recommended reforms in legislation, which include improving reporting to Congress, requiring consultation with the governor before deploying troops to any state, and limiting the president’s authority to deploy troops under the law to a maximum of 30 days absent renewed congressional authorization.

“The president’s triggers for invoking the Insurrection Act must be strengthened and narrowed,” Goldsmith said at July discussion on Insurrection Act reform sponsored by the progressive nonprofit organization Brennan Center for Justice. “He needs to have discretion, but now, in old-fashioned terms, it’s just unlimited freedom of action. The language needs to be cleansed, narrowed and updated.”

Goldsmith noted that the US military is preparing to defend the country from foreign attacks, not to carry out domestic policing. He said it was a bad idea for them to engage in internal unrest “because it creates a force that is supposed to represent the whole country and protect the whole country, and it puts them in a situation in which they are not adequately trained.” For. This is not good for morale. This is not good for the army.”

Brennan Center for Justice lawyer Joseph Nunn said that throughout the Constitution, as well as hundreds of years of Anglo-American legislation, “there is a message that military intervention in the affairs of civil government is dangerous and should be limited, whenever possible, to emergency situations, because it is a danger to both democracy and and for democracy.” and personal freedom.”

Using the military to maintain law and order, he said, risks embroiling them in domestic political disputes, “which, in the most extreme cases, could ultimately lead to the degradation of civilian institutions and perhaps even their replacement by military rule, as we have seen in the military coups around world.”

He says Congress should correct the lack of meaningful criteria determining when the Insurrection Act can be invoked, noting that because police agencies are better armed now than they were when the law was written 150 years ago, it should not be invoked as often. as it was in those days.

“It needs to be framed in objective terms, not language that gives the president discretion,” Nunn said at the July debate.

Democratic U.S. Senator Richard Blumenthal of Connecticut who has presented legislation he calls the Insurrection Act of 2024, which would limit how the president can station military forces within the United States, told Politico he expects Trump’s latest comments will spark renewed enthusiasm for his proposal.

“My legislation to reform the Insurrection Act—an outdated slavery-era law—would impose much-needed oversight and accountability to the President’s sweeping, virtually unlimited authority to use military force against the American people,” ranking member of the Interior Department, Armed Services and Judiciary Committees said on social networks. “Republicans in Congress need to wake up and join forces to strengthen our core democratic principles, such as the idea that the US military should not be used to police American citizens.”

If Trump returns to power and his administration deploys the military to suppress peaceful protests, American Civil Liberties Union says he is prepared to file lawsuits on behalf of protesters and the media to question the constitutionality of any intervention. The organization says it will likely bring claims under both the First Amendment (for violations of freedom of speech and association) and the Fourth Amendment (for unlawful arrest and excessive use of force).

“If Trump were to use the Insurrection Act to suppress a lawful protest, it would be an unprecedented and unconstitutional abuse of power,” Trump said. says the group’s position paper.

The American Civil Liberties Union says it will ask Congress to narrow the scope of the president’s powers to order the military to suppress lawful protests, limit the federal government’s surveillance powers and strengthen protections against politically motivated investigations and prosecutions.

That includes supporting Congress’ efforts to rein in the Insurrection Act, which he calls “a loaded gun in the hands of a president like Trump.”

“Before the Insurrection Act can be invoked, there must be narrow, clearly defined conditions that must be met, and the deployment of forces under the Insurrection Act must be time-limited and subject to judicial review,” his position paper states. “There are proposals with bipartisan support, and the ACLU will work with allies to pursue every legislative opportunity.”

Sabrina Eaton writes about the federal government and politics in Washington, D.C., for cleveland.com and The Plain Dealer.