Everything You Wanted To Know About 'Can Trump Insurrection Act Us' But Were Correctly Afraid To Ask
Just before Trump had law enforcement violently disperse peaceful protesters in Lafayette Park (at the personal direction of Reichsminister Bill Bar) with rubber bullets and tear gas so he could get a photo op at a church, he threatened to send in the military to break up protests against police brutality.
Trump, who last month called heavily armed white people threatening Michigan lawmakers "very good people," declared the current anti-racism protests "acts of domestic terror" and called for governors to "deploy the National Guard in sufficient numbers" to "dominate the streets." He also said:
If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.
And then he took to Twitter yesterday to second Tom Cotton's call to send in the 101st Airborne, an infantry division of the US Army specifically trained to conduct air assault operations.
100% Correct. Thank you Tom! https://t.co/axdLX7kGNn— Donald J. Trump (@Donald J. Trump)1591035880.0
WHAT IN THE ACTUAL FUCK?
The TL;DR is that an old ass law gives the president the authority to use troops as support for domestic law enforcement in certain situations. It's rarely used, since the president siccing the military on the American people is generally frowned upon. But the world actually ended in 2012 and we are in hell, so here we are.
Any authority trump has to deploy the military to act as domestic law enforcement comes from the appropriately ominously titled Insurrection Act of 1807 (yes, you read that right — 1807).
The Insurrection Act has never been used in the 21st century. The last US President to invoke the Insurrection Act was George H.W. Bush, who sent troops to LA during the protests and riots after the cops who beat Rodney King were acquitted, at the request of California Governor Pete Wilson.
In our current situation, exactly zero (0) states have asked for help from the military and some are actively opposed to the idea. Unfortunately, for the narcissistic authoritarian in the Oval Office, that probably makes the idea even more appealing. Just in case there weren't already enough reasons to be absolutely fucking horrified that this fucking cartoon villain is actually the commander-in-chief.
Answers to your Insurrection Act FAQs
Here we go.
What the fuck is happening at the White House right now?
Well, the president of the United States is a racist authoritarian, so he wants to send in the fucking military to put down protests about the blatant fucking disregard this country and its police force have for black lives.
Wait a goddamn second, the president is allowed to use the military against Americans?
The Posse Comitatus Act is an 1878 law that says the president can't use the military as domestic law enforcement. You know, since we're technically not an actual police state [yet]. States, which have more police power than the feds, are in charge of law enforcement and have a lot more police power than the federal government.
But the Insurrection Act makes an exception to the Posse Comitatus rules and lets the president send in troops if an "insurrection, domestic violence, unlawful combination, or conspiracy" prevents the federal government from enforcing federal law.
So can Trump just start sending troops into cities at any time?
Not so fast. The law says that, before the feds can send in the military, the president has to "by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time," to give people the opportunity to stop before the military comes in. And he hasn't done that yet.
Can the racist-in-chief send in the troops even if the state doesn't want them there?
Yup. The Insurrection Act explicitly allows the president to federalize the National Guard and send in military troops to stop illegal shit when
it so hinders the execution of law of that State and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it opposes or obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.
Usually, the president will try to get approval from a state's governor before sending in the military. (For example, that's one of the reasons W. didn't send troops to New Orleans after Hurricane Katrina.) But that isn't always the case. Remember how the military helped enforce desegregation for the Little Rock Nine, James Meredith enrolling at Ole Miss, and students in Alabama following Brown v. Board of Education? That was done under the Insurrection Act, too.
Of course, Eisenhower, JFK, and LBJ had legitimate reasons to invoke the Insurrection Act against the will of the states of Arkansas, Mississippi, and Alabama; those states were actively flouting federal law. Here, disregard for civil and human rights for people of color is actually what people are protesting.
I guess it's pretty fitting that Trump is basically pulling an actual reverse of the civil rights movement.
What can the troops actually do in this situation?
Trump probably doesn't know that there are actually rules for what the military can and can't do when acting as support for domestic law enforcement.
Like Naval War College professor and military law expert Lindsay Cohn told Vox,
Trump can only deploy troops within the US "for certain purposes [...] Technically and legally, he can send them to protect federal property or enforce federal law."
When supporting law enforcement here in the states, the military has to follow the Standing Rules for the Use of Force, which are different from and mostly stricter than the Standing Rules of Engagement that the military employs in actual military missions. As explained by Naval Academy Distinguished Military Professor of Leadership & Law Mark Nevitt at Just Security,
While the rules of force for a military domestic operation will be tailored to the unique mission in coordination with the state law enforcement agency and governing state law, certain core principles remain constant. For example, force is to be used only as a last resort, and the force used should be the minimum necessary. Further, deadly force is to be used only when all lesser means have failed or cannot be reasonably employed.
Using deadly force aggressively to stop looting clearly violates the governing rules for the use of force, principles of de-escalation, and the principles of using only minimum force, as a last resort.
And, as one active duty Air Force officer who flew warplanes in Afghanistan told Alex Wart at Vox,
"These protests aren't combat and shouldn't be viewed through the same prism [as active combat]," the officer said, speaking on the condition of anonymity to talk candidly about a sensitive issue. "Expecting a military response is myopic on the part of the administration, tone-deaf in light of yet another intolerable and unacceptable killing, and a misuse of the military."
So if Trump is hoping for the troops to head into Minneapolis and Manhattan with guns blazing, he is — hopefully — going to be very disappointed.
Can this fuckery be challenged in court?
It definitely can be challenged, but a victory for the challengers seems very unlikely. Courts are always wary about getting deep into the issues of separation of powers and federalism that a challenge to Trump's use of the Insurrection Act would present. And they're even warier about getting into the nitty gritty details of what's actually permitted under a law like the Insurrection Act, which on its face gives pretty broad powers to the commander-in-chief. Not to mention the fact that the current Supreme Court has showed that it basically agrees with Trump that he has an Article II that lets him do whatever he wants.
Like Nevitt wrote last week,
In sum, invoking the Insurrection Act remains a rare occurrence in U.S. history, used in the most extraordinary circumstances, such as the complete disregard for enforcing federal civil rights laws or massive unrest in the nation's second largest city. Despite the Insurrection Act's invocation in Los Angeles, it has not been used in 28 years. And it was not invoked in Ferguson, Missouri. Nor was it invoked in Baltimore, Maryland during the riots that occurred in the aftermath of the death of Freddie Gray, who was killed by police officers in 2015. Nor was it invoked in the aftermath of Hurricane Katrina. Finally, it remains unclear whether the invocation of these two provisions are subject to judicial review. Courts have historically been reluctant to wade into these complex federalism and separation of powers waters and will certainly be wary of providing specific guidance.
So ... yeah.
So WTF happens now?
Unclear, but it's probably not going to be good. Trump and Bill Bar have shown, time and time again, that they are authoritarian pigs who think following the "rule of law" only applies to other people. We have a bunch of dangerous fucking fascist goons in power who would love nothing more than to flex US military power by cracking down on people protesting systemic racism — which the people running the current executive branch believe in and want to protect. It's terrifying, horrifying, and basically what a lot of us have been worried about since the 2016 election.
So now, it looks like we have another thing to protest.
But let's not forget about what started these nationwide protests in the first place: police officers killing George Floyd in broad daylight and the systemic police brutality against black people that George Floyd's murder represents.
Black lives matter.
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