WASHINGTON (AP) — Campaigning in Iowa this year, Donald Trump said he was prevented during his presidency from using the military to quell violence in predominantly Democratic cities and states.
Calling New York and Chicago “dens of crime,” the candidate for the 2024 Republican presidential nomination told his audience: “Next time, I’m not waiting. One of the things I did was let them run the project and we’re going to show how bad their work is,” he said. “Well, we did it. We don’t need to wait any longer.
Trump has not spelled out precisely how he might use the military in a second term, although he and his advisers have suggested they would have wide latitude in calling up units. Although regularly deploying the military within the country’s borders would be a break with tradition, the former president has already announced an aggressive agenda if he wins, ranging from mass deportations to travel bans imposed on some Muslim-majority country.
A law first drafted in the country’s early days would give Trump, as commander in chief, nearly unlimited power to do so, military and legal experts said in a series of interviews.
The Insurrection Act authorizes presidents to call upon reserve or active-duty military units to respond to unrest in the states, an authority that is not subject to review by the courts. One of the few safeguards simply requires the president to require participants to disperse.
“The main constraint on the president’s use of the Insurrection Act is fundamentally political: Presidents don’t want to be the ones sending tanks down Main Street,” said Joseph Nunn, a national security expert at the Brennan Center. for Justice. “There’s not really much in the law to restrain the president.”
A Trump campaign spokesperson did not respond to multiple requests for comment on what authority Trump might use to pursue his plans.
Congress passed the law in 1792, just four years after the Constitution was ratified. Nunn said it was an amalgamation of different laws passed between then and the 1870s, a time when there was little local law enforcement.
“This is a law that in many ways was created for a country that no longer exists,” he said.
It is also one of the most important exceptions to the Posse Comitatus Act, which generally prohibits the use of the military for law enforcement purposes.
Trump has spoken openly about his plans if he wins the presidency, including using the military on the border and in cities struggling with violent crime. His plans also include using the military against foreign drug cartels, a view echoed by other Republican primary candidates such as Florida Gov. Ron DeSantis and Nikki Haley, a former U.N. ambassador and governor. from South Carolina.
The threats have raised questions about the meaning of military oaths, presidential power and who Trump might appoint to support his approach.
Trump has previously suggested he could bring back retired Lt. Gen. Michael Flynn, who briefly served as Trump’s national security adviser and twice pleaded guilty to lying to the FBI during its investigation into the Russian influence before being pardoned by Trump. Flynn suggested in the aftermath of the 2020 election that Trump could seize voting machines and order the military in some states to help restart elections.
Attempts to invoke the Insurrection Act and use the military for domestic policing would likely draw backlash from the Pentagon, where the new chairman of the Joint Chiefs of Staff is Gen. Charles Q. Brown. He was one of eight members of the Joint Chiefs of Staff who signed a memo addressed to military personnel following the Jan. 6, 2021, attack on the U.S. Capitol. The memo focused on the oaths they took and called the events of that day, which aimed to prevent the certification of Democrat Joe Biden’s victory over Trump, “sedition and insurrection.”
Trump and his party nevertheless retain broad support among those who have served in the military. AP VoteCast, an in-depth survey of more than 94,000 voters across the country, showed that 59% of American veterans voted for Trump in the 2020 presidential election. In the 2022 midterm elections , 57% of veterans supported Republican candidates.
Presidents have issued a total of 40 proclamations invoking the law, some multiple times for the same crisis, Nunn said. Lyndon Johnson invoked it three times – in Baltimore, Chicago and Washington – in response to the unrest that erupted in the cities after the assassination of Dr. Martin Luther King Jr. in 1968.
During the civil rights era, Presidents Johnson, John F. Kennedy, and Dwight Eisenhower used the law to protect activists and students who opposed school desegregation. Eisenhower sent the 101st Airborne to Little Rock, Arkansas, to protect black students entering Central High School after that state’s governor activated the National Guard to keep the students out.
George HW Bush was the last president to use the Insurrection Act, a response to the 1992 Los Angeles riots after the acquittal of white police officers who beat black motorist Rodney King in an incident caught on video.
Repeated attempts to invoke this law during another Trump presidency could put pressure on military leaders, who could face consequences for their actions, even if they were carried out at the president’s direction.
Michael O’Hanlon, foreign policy research director at the Brookings Institution think tank, said the question is whether the military is imaginative enough in the scenarios it presents to future officers. Ambiguity, especially when force is involved, is not something military personnel are uncomfortable with, he said.
“There are a lot of institutional checks and balances in our country that are quite well developed legally, and it will be difficult for a president to do something randomly and out of the blue,” said O’Hanlon, who specializes in in American Defense Strategy and the Use of Military Force. “But Trump is good at developing a semi-logical line of thinking that could lead to a place where there is enough chaos, enough violence and legal vagueness” to call in the military.
Democratic Rep. Pat Ryan of New York, the first U.S. Military Academy graduate to represent the congressional district that includes West Point, said he was sworn in three times while at school and several times during his military career. He said the emphasis in class was largely on an officer’s responsibilities to the Constitution and those under his command.
“They really made us understand the seriousness of the oath and who it was for and who it was not for,” he said.
Ryan said he thought it was universally understood, but Jan. 6 “was deeply troubling and a wake-up call for me.” Several veterans and active-duty military personnel have been charged with crimes related to the assault.
While these connections are troubling, he said he believes those who harbor similar feelings make up only a very small percentage of the military.
William Banks, a law professor at Syracuse University and an expert on national security law, said a military officer is not obligated to follow “unlawful orders.” This could create a difficult situation for leaders whose units are called upon to provide national policing, as they could be accused of committing illegal acts.
“But there is a big thumb on the scale in favor of the president’s interpretation of the legality of the order,” Banks said. “You would have a very big argument to settle and you would have a lot of noise within the military if you chose not to follow a presidential order.”
Nunn, who suggested measures to restrict invocation of the law, said military personnel cannot be ordered to break the law.
“Military personnel are legally required to disobey an illegal order. At the same time, it is a lot to ask of the military, because they are also obliged to obey orders,” he said. “And the punishment for disobeying an order that turns out to be lawful is that your career is over and you could well go to prison for a very long time.” The stakes for them are extraordinarily high.
Associated Press writers Jill Colvin and Michelle L. Price in New York and Linley Sanders in Washington contributed to this report.
