A 1792 Federal Law and An Autocratic Candidate

     President Eisenhower used federal troops to desegregate public schools in Little Rock, Arkansas (1957)

“The Insurrection Act [, originally enacted in 1792,] grants the president the authority to deploy the U.S. military domestically and use it against Americans under certain conditions. While there are rare circumstances in which such authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse… [The law allows] the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to ‘provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.’ It is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.” The Brennen Center, April 21, 2022

State governors may request that the President invoke the law to suppress a localized “insurrection,” but the President alone can also invoke the statute where he or she desires to put down “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The President may use the law to suppress “‘any insurrection, domestic violence, unlawful combination, or conspiracy’ that ‘so hinders the execution of the laws’ that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South after the Supreme Court’s landmark decision in Brown v. Board of Education…

“Nothing in the text of the Insurrection Act defines ‘insurrection,’ ‘rebellion,’ ‘domestic violence,’ or any of the other key terms used in setting forth the prerequisites for deployment. Absent statutory guidance, the Supreme Court decided early on that this question is for the president alone to decide. In the 1827 case Martin v. Mott, the Court ruled that ‘the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.’” Brennen. Donald Trump has vowed, if reelected, to use the Insurrection Act to end his perception of lawlessness, mostly in large blue cities, and “the former president already has signaled an aggressive agenda if he wins, from mass deportations to travel bans imposed on certain Muslim-majority countries.” Gary Fields writing for the December 2nd Associated Press.

So let’s see, we have a dedicated autocrat, very openly hell-bent on arresting and punishing his political opponents (his “retribution”), threatening to use a statute that has several very seriously undefined terms, which according existing Supreme Court precedent cannot be judicially reviewed… what could possibly go wrong? If the Supreme Court does not intervene to reverse Martin vs Mott? Donald Trump has been anything but subtle about his intentions: “[He] has spoken openly about his plans should he win the presidency, including using the military at the border and in cities struggling with violent crime. His plans also have included using the military against foreign drug cartels, a view echoed by other Republican primary candidates such as Florida Gov. Ron DeSantis and Nikki Haley, the former U.N. ambassador and South Carolina governor… The threats have raised questions about the meaning of military oaths, presidential power and whom Trump could appoint to support his approach.

“Trump already has suggested he might bring back retired Army Lt. Gen. Michael Flynn, who served briefly as Trump’s national security advisor and twice pleaded guilty to lying to the FBI during its Russian influence probe 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 rerun the election…

“Repeated attempts to invoke the act in a new Trump presidency could put pressure on military leaders, who could face consequences for their actions even if done at the direction of the president… Michael O’Hanlon, director of research in foreign policy at the Brookings Institution think tank, said the question is whether the military is being imaginative enough with the scenarios it has been presenting to future officers. Ambiguity, especially when force is involved, is not something military personnel are comfortable with, he said.

“‘There are a lot of institutional checks and balances in our country that are pretty well-developed legally, and it’ll make it hard for a president to just do something randomly out of the blue,’ said O’Hanlon, who specializes in the use of military force. ‘But Trump is good at developing a semi-logical train of thought that might lead to a place where there’s enough mayhem, there’s enough violence and legal murkiness’ to call in the military.” AP. While O’Hanlon may believe in an implied tradition of checks and balances, the law and judicial precedents hardly support that notion here.

Trump’s ambitions reveal an intention to impose required “right thinking” on all Americans: “The former president has pledged to wield his executive authority to influence school curricula and prevent doctors from providing medical interventions for young transgender people—areas where state or local officials have traditionally taken the lead. He has also said he’d establish a government-backed ‘anti-woke’ university, create a national credentialing body to certify teachers who embrace patriotic values’ and erect new ‘freedom cities’ on federal land. It’s a governing platform barely recognizable to prior generations of Republicans, who campaigned against one-size-fits-all federal dictates…” Wall Street Journal, December 2nd. The GOP version of BIG GOVERNMENT?

That this line of thinking is becoming MAGA doctrine as noted by the general support by other GOP candidates, it is very likely to be taken to the greatest extremes by Donald Trump if reelected… by his own admission. We used to treasure diverse thinking within our society. Further, the military is hardly a trained police force; their training is to defend and attack. For those who fear that a Trump presidency would be the end of American democracy, this use of the Insurrection Act is probably the tool Trump could use to change our form of government, perhaps forever. Where are the enforceable checks and balances we are used to? What are the guard rails? This law, in Trump’s hands, is begging for excess and abuse.

I’m Peter Dekom, and the next presidential election is less about the obvious and immediate issues than it is a choice between democracy and autocracy.