The federal government's authorities to use the military for domestic law enforcement are old, broad, and vague. They may soon become far more relevant than they've been for quite a long time.
It's tough when the Trump regime does so many things that offend common sense but are actually potentially legally viable. It really points out that the most powerful weapon to stop Trump, the political process, is the one that's failed so spectacularly.
There is a certain head-spinning irony in the report on domestic use of the military being due on Easter Sunday... a Christian celebration of the "Prince of Peace."
The Constitution requires the Senate to approve (by a 2/3rds vote) any treaties that the President makes with foreign countries. So how did Trump manage to make an agreement with El Salvador to ship people there to hold them in prison? Aren't all agreements with foreign countries considered "treaties?" Oh wait -- did Congress give him that blanket authority too, in addition to tariffs?
How likely do you think it is that Trump will use federal troops, even if they are to enforce existing laws as the president sees them? Also your point that Congress erred when they trusted that every president would be like George Washington is an excellent one.
Thanks for this post. Rich guy Jay Gould, railroad robber baron in the first gilded age, said during a strike suppression, something like “I can hire one half of the working class to kill the other half of the working class.” What rights does a soldier and or officer have to refuse orders when orders are clearly unconstitutional? Say if the military were ordered to disperse or attack an orderly protest and the soldier could see there was no violence occurring? Could a soldier legally disobey an order to move against the protesters?Would it come down to “trumped up” allegations of violence by the protesters? What were the repercussion, if any, for the national guard for the deaths at Kent State in 1970? (It was said rocks were thrown at the troops.)
I know this is an older post so thanks for highlighting it today. Does anyone remember when Pete hegseth made an announcement about his suspension of/cessation of the military obligation to the safety of civilians when engaged operations? I don’t remember his exact wording but I’ll include a brief article that summarizes his position and provides information about the Lieber Act and ramifications of Hegseth’s statements.
Today, I’m wondering if his order(?) for the military to disregard civilian safety and lives would be considered in place if the Insurrection Act/martial law (or inappropriate acts under such proclamations) were assumed by Trump? Scary stuff, especially the way Trump just dashes off an Orwellian EO and then does whatever he wants and the courts attend to it months later.
NYT on Saturday notes that ICE was in possession of an ‘administrative warrant’ when they entered Judge Dugan’s courtroom….not an arrest warrant. Steve, please tell us what this means. Thank you.
Does your explanation imply that even when the PCA was passed as part of a package deal [a sop to the South] to settle a contested presidential election... the president could still have invoked the Insurrection Act to supply the troops necessary to go to the South to support Reconstruction... or did I misunderstand the relationship between the two?
Mr. Chandler interestingly comments about Martin v Mott. Hoover removed the Bonus Army from the Mall. Was the Insurrection Act cited as authority at the time?
Military follows chain of command. Opposing the Commander in Chief, particularly with a sympathetic DoD command structure (SecDef. Jt Chiefs), DC Natl Guard, and DoJ, it is problematic for soldier(s). Courts seem academic, unless the President caves. President has immunity while in office and afterwards for his official acts.
Please limit your comments to the legal issue. It was meant for Prof Vladeck. It was whether President Hoover used the Insurrection Act or acted under other legal authority to have the US military clear the Mall of the remaining members of the Bonus Army. You might also want to read the history of the Bonus Army, as it is more complex (particularly given Congressional politics and economics) then the moral issue at the heart of your comment.
The SCOTUS trivia section was very interesting. In a post-Trump scenario that (hopefully) does not end in creeping authoritarianism or full-on dictatorship :) , do you think it would be prudent to enshrine the original standard that Washington obeyed into the Constitution via constitutional amendment to prevent abuses?
It's tough when the Trump regime does so many things that offend common sense but are actually potentially legally viable. It really points out that the most powerful weapon to stop Trump, the political process, is the one that's failed so spectacularly.
The political process passed the laws Trump is using. Only now do I hear complaints…
There is a certain head-spinning irony in the report on domestic use of the military being due on Easter Sunday... a Christian celebration of the "Prince of Peace."
The Constitution requires the Senate to approve (by a 2/3rds vote) any treaties that the President makes with foreign countries. So how did Trump manage to make an agreement with El Salvador to ship people there to hold them in prison? Aren't all agreements with foreign countries considered "treaties?" Oh wait -- did Congress give him that blanket authority too, in addition to tariffs?
Doesn't Martin v. Mott make the decision of the president to "call forth the militia" in the words of that case unreviewable by a court?
How likely do you think it is that Trump will use federal troops, even if they are to enforce existing laws as the president sees them? Also your point that Congress erred when they trusted that every president would be like George Washington is an excellent one.
Thanks for this post. Rich guy Jay Gould, railroad robber baron in the first gilded age, said during a strike suppression, something like “I can hire one half of the working class to kill the other half of the working class.” What rights does a soldier and or officer have to refuse orders when orders are clearly unconstitutional? Say if the military were ordered to disperse or attack an orderly protest and the soldier could see there was no violence occurring? Could a soldier legally disobey an order to move against the protesters?Would it come down to “trumped up” allegations of violence by the protesters? What were the repercussion, if any, for the national guard for the deaths at Kent State in 1970? (It was said rocks were thrown at the troops.)
It seems like as of Saturday night and for the City of Los Angeles, the deed has just begun. I feel deeply saddened it is coming to this.
I know this is an older post so thanks for highlighting it today. Does anyone remember when Pete hegseth made an announcement about his suspension of/cessation of the military obligation to the safety of civilians when engaged operations? I don’t remember his exact wording but I’ll include a brief article that summarizes his position and provides information about the Lieber Act and ramifications of Hegseth’s statements.
Today, I’m wondering if his order(?) for the military to disregard civilian safety and lives would be considered in place if the Insurrection Act/martial law (or inappropriate acts under such proclamations) were assumed by Trump? Scary stuff, especially the way Trump just dashes off an Orwellian EO and then does whatever he wants and the courts attend to it months later.
https://thehill.com/opinion/national-security/5111452-trump-and-hegseth-are-gutting-the-militarys-protection-of-civilians-in-combat/
Steve I'm a daily bean. Aaron Parnasas is watching over night. I'll look at your post. I'd think we need a judge to stop crossing borders.
NYT on Saturday notes that ICE was in possession of an ‘administrative warrant’ when they entered Judge Dugan’s courtroom….not an arrest warrant. Steve, please tell us what this means. Thank you.
Does your explanation imply that even when the PCA was passed as part of a package deal [a sop to the South] to settle a contested presidential election... the president could still have invoked the Insurrection Act to supply the troops necessary to go to the South to support Reconstruction... or did I misunderstand the relationship between the two?
The quote with which you begin your student note could not be more timely -
"The accretion of dangerous power does not come in a day. It
does come, however slowly, from the generative force of
unchecked disregard of the restrictions that fence in even the most
disinterested assertion of authority."
Mr. Chandler interestingly comments about Martin v Mott. Hoover removed the Bonus Army from the Mall. Was the Insurrection Act cited as authority at the time?
Military follows chain of command. Opposing the Commander in Chief, particularly with a sympathetic DoD command structure (SecDef. Jt Chiefs), DC Natl Guard, and DoJ, it is problematic for soldier(s). Courts seem academic, unless the President caves. President has immunity while in office and afterwards for his official acts.
Please limit your comments to the legal issue. It was meant for Prof Vladeck. It was whether President Hoover used the Insurrection Act or acted under other legal authority to have the US military clear the Mall of the remaining members of the Bonus Army. You might also want to read the history of the Bonus Army, as it is more complex (particularly given Congressional politics and economics) then the moral issue at the heart of your comment.
This also raises the medium-term concern for potential use of the military to ostensibly enforce new federal election laws at polling stations.
There, at least, there are a bunch of statutes that specifically bar troops at the polls...
Thanks Steve.
And don’t forget domestic misuse of federal agency enforcement authority. https://open.substack.com/pub/laguarda/p/stop-police?r=9qil9&utm_medium=ios
The SCOTUS trivia section was very interesting. In a post-Trump scenario that (hopefully) does not end in creeping authoritarianism or full-on dictatorship :) , do you think it would be prudent to enshrine the original standard that Washington obeyed into the Constitution via constitutional amendment to prevent abuses?
What would the arguments be against it, if not?