Thread by @steve_vladeck

There's a fair amount of disinformation and misinformation going around about the federal government's legal authority to use troops to help respond to the unrest in Minneapolis.

Here's a short #thread with answers (and citations to authority) for the five big questions:

1. "Isn't the military already on the ground"?

A: Yes, the MN National Guard has been deployed by Gov. Walz. But the Guard wears (at least) two hats. Right now, it's wearing its "state" hat, subject to the control solely of the Governor, which is uncontroversial.

2. "Doesn't the Posse Comitatus Act bar use of federal troops for domestic law enforcement?"

A: No. The PCA only bars such use of the military *without* statutory authorization.

law.cornell.edu/uscode/text/18…

Several statutes *authorize* such use of the military for law enforcement.

2a. As relevant here, the Insurrection Act (uscode.house.gov/view.xhtml?pat…) and 10 U.S.C. § 12406, which governs federalization of Guard troops (law.cornell.edu/uscode/text/10…).

When these statutes are (properly) invoked, there is no Posse Comitatus problem with domestic use of the military.

3. "Doesn't the Governor have to request troops before the President can send them?"

A: Not necessarily. Although *some* of these authorities require a state request before federal regulars or federalized Guard troops can be used for domestic law enforcement, some of them don't.

4. "But if the Governor has already called out the National Guard, doesn't that block them from being federalized?"

A: No. The authorities to federalize the Guard do not depend on what they were doing beforehand; there may just be less *need* to do so if they're already on site.

5. "Okay, fine. So what are the actual limits on when the President can use Guard or regular troops for domestic law enforcement?"

A: I've saved the hardest one for last. The Insurrection Act is open-ended, leaving to the President the power to decide if circumstances warrant:

5a. Historically, the real checks on abuse of these authorities have been political. The Insurrection Act hasn't been invoked since 1992—largely because domestic use of the military is generally unpopular.

But it's not implausible to argue that these statutes *could* apply now.

5b. And it's hard to imagine courts second-guessing factual determinations by the President that circumstances warrant use of the military to restore order.

Instead, the real constraint today might be *responsibility*; if Trump invokes these statutes, he'd own all that follows.

5c. There's a lot more to say on the topic, but I don't want to belabor the key points.

If you're curious about the broader historical and constitutional foundation for these authorities, see this paper I wrote back in 2004:

digitalcommons.law.yale.edu/cgi/viewconten…

Thanks for reading!!

/end

P.S. It’s worth adding that, once deployed in this context, the military’s job is to supplement civilian law enforcement, not supplant it—enforcing same laws with same penalties.

Many will still be wary of domestic use of troops, but it’s not a per se threat to the rule of law.

See also:

https://twitter.com/marknevitt/status/1266759809304535043?s=21

https://twitter.com/marknevitt/status/1266759809304535043