Federal officers dispersing a protest against Immigration and Customs Enforcement, Portland, Oregon, September 18, 2020. Nathan Howard/Getty Images
President Trump is attempting to turn “law and order versus anarchy” into an election issue that will distract voters from the White House’s incompetence in dealing with Covid-19 and the economic consequences of the pandemic, and provide cover for its perpetuation of systemic racial injustice. He has sent armed federal agents into majority-Democratic cities on the pretext of quelling unrest stemming from Black Lives Matter protests. At the same time, he appears to be encouraging his supporters to sow chaos in Democratic cities in order to create an excuse for redeploying federal forces and to reinforce fears of disorder.
Trump’s first martial response to the protests, which have been overwhelmingly though not exclusively peaceful, was to use the active-duty military. On June 1, he had administration officials mobilize low-flying military helicopters and military police to help law enforcement personnel clear a path through unthreatening Black Lives Matter and kindred protesters so that he could walk from the White House across Lafayette Square for a photo op with a Bible at a church. He was flanked by the chairman of the Joint Chiefs of Staff, General Mark Milley (in combat fatigues), and Secretary of Defense Mark Esper, as well as Attorney General William Barr and other senior officials. In the Rose Garden, just before he walked to the square, Trump declared himself “your president of law and order.” He wanted a larger deployment of troops in Washington, and the Pentagon placed a 1,600-strong rapid-reaction unit drawn from the Eighty-Second Airborne Division and several military police units on standby near the city. Cooler heads prevailed, but only barely.1
The president’s power to use the military domestically is strictly limited. Civilian control of the military is enshrined in Article II of the Constitution. Under the Tenth Amendment, however, the power to police is among those “not delegated to the United States” and is thus “reserved to the states.” Furthermore, the US armed forces are customarily focused on external threats and overseas operations, and federal laws restrict US military authority and actions in domestic situations. Under the Posse Comitatus Act of 1878, the military cannot be used to enforce domestic civilian law, unless expressly authorized by the Constitution or an act of Congress.2 Exceptions to the act passed in the 1980s allow the armed forces to provide intelligence support and equipment to state authorities for law enforcement purposes, but fall far short of allowing domestic troop deployments.