Two Democratic senators are urging the Biden administration to issue a policy directive that could temporarily limit President-elect Donald Trump's ability to deploy U.S. military troops domestically after he takes office.
Sens. Elizabeth Warren, D-Mass., and Richard Blumenthal, D-Conn., both members of the Armed Services Committee, sent a letter dated Nov. 26 to President Joe Biden and Defense Secretary Lloyd Austin that urged them to issue a policy directive that would ensure that U.S. troops can be used only when local or state authorities ask for federal help or are unable or unwilling to protect the public.
“We write to urge you to issue a policy directive that prohibits the mobilization of active duty military or federalizing National Guard personnel to be deployed against their fellow Americans unless specifically authorized,” they wrote.
After he takes office on Jan. 20, Trump could issue his own policy directive that would reverse the directive issued by Biden. Warren and Blumenthal, whose offices said the letter speaks for itself, apparently hope that publicly highlighting the issue might deter Trump.
During his first term, Trump considered using the Insurrection Act in response to the Black Lives Matter protests. And some of his allies urged him to consider invoking martial law after he was defeated in the 2020 election.
More recently, Trump has suggested he would use the U.S. military to help deport immigrants who do not have permanent legal status. He has also said he would move U.S. troops from overseas and station them on the southern border. And Trump has repeatedly talked about using troops to go after “the enemy from within.”
In an interview with Fox News before the election, he said: “I think the bigger problem are the people from within. We have some very bad people. We have some sick people, radical left lunatics. And I think they’re the — and it should be very easily handled by — if necessary, by National Guard or, if really necessary, by the military, because they can’t let that happen.”
Federal troops are prohibited from engaging in domestic law enforcement by the Posse Comitatus Act, an 1878 law that bars the president from using the military for such a purpose unless it is expressly authorized by the Constitution or an act of Congress.
A separate law, the Insurrection Act, an amalgamation of various statutes Congress passed from 1792 to 1871, creates an exception. It allows the president to deploy military troops in cases of insurrection, rebellion or extreme civil unrest.
In their letter, Warren and Blumenthal asked the Biden administration to issue a policy directive before Biden leaves office that would require state or local officials to request assistance before federal military forces are deployed.
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“We urge you to issue a policy directive that makes clear that the narrow application of the Insurrection Act should be limited to instances when State or local authorities are so overwhelmed and that the chief executive of the State requests assistance,” they wrote, “or attacks against the U.S. government overwhelm State or local authorities.”
Civil liberties groups have warned that Trump could misuse the military in a second term. Joseph Nunn, a counsel at the Liberty and National Security Program at the Brennan Center for Justice at NYU Law, warned that the Insurrection Act gives the president virtually unlimited discretion and power to use the military as a police force and that it essentially creates a loophole in the Posse Comitatus Act.
“Unless Congress acts now to reform this dangerous and antiquated law, there’s little anyone could do to stop him,” Nunn wrote last year, citing fears that Trump would abuse his powers if he were re-elected.
Warren and Blumenthal also asked the White House to ensure that future administrations would go to Congress before they turned to the military for domestic law enforcement.
“Finally, we urge you to clarify that the President must consult with Congress to the maximum extent practicable before exercising this authority, as well as transmit to the Federal Register the legal authorities,” they wrote.
They warned that the recent Supreme Court decision that expanded presidential immunity for official acts made the need for clear policy more urgent.
“Given the disagreement amongst scholars on the serious implications of the recent Supreme Court decision, it is reasonable to assume that service members, other DoD personnel, and the broader military community may not be aware of or fully understand their rights and responsibilities,” Warren and Blumenthal wrote.
“If unaddressed," they added, "any ambiguity on the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to utilize the military in such dangerous and unprecedented ways, may prove to be devastating.”
