Former President Donald Trump said while campaigning in Iowa this year that he was kept from using the military to quell violence in primarily Democratic cities and states during his presidency. The 2024 Republican primary frontrunner called New York City and Chicago "crime dens," telling his audience, "The next time, I’m not waiting. One of the things I did was let them run it and we’re going to show how bad a job they do,” he said. “Well, we did that. We don’t have to wait any longer.”
The former president has not precisely explained how he plans to employ the military during a potential second term, though he and his advisors have suggested they would have a far reach to call its units. While regularly deploying the military within the nation's borders would depart from precedent, Trump has already foreshadowed his aggressive agenda if he wins, including mass deportations and travel bans imposed on certain Muslim-majority countries, the Associated Press reports.
A law crafted early in the nation's history would give the former president — as commander in chief — almost unbridled power to call upon the military, legal and military experts told the AP.
The Insurrection Act authorizes presidents to summon reserve or active-duty military units to respond to unrest in the states, a power that is not reviewable by the courts. One of its few limitations requires the president to request that participants in the unrest disperse.
“The principal constraint on the president’s use of the Insurrection Act is basically political, that presidents don’t want to be the guy who sent tanks rolling down Main Street,” Joseph Nunn, a national security expert with the Brennan Center for Justice, told the AP. “There’s not much really in the law to stay the president’s hand.”
Nunn said the act, which passed in 1792, just four years after the Constitution was ratified, is now a fusion of different statutes enacted between then and the 1870s, a moment when local law enforcement had few restrictions.
“It is a law that in many ways was created for a country that doesn’t exist anymore,” he added.
It's also one of the most significant exceptions to the Posse Comitatus Act, which generally bars the use of the military for purposes of law enforcement.
Trump has openly voiced his plans around using the military at the southern border and in cities struggling with violent crime if he wins the presidency. His agenda has also included employing the military against foreign drug cartels, a measure echoed by fellow Republican candidates Florida Gov. Ron DeSantis and Nikki Haley, the former U.N. ambassador and South Carolina governor. Those threats have prompted questions about presidential power, the meaning of military oaths, and who Trump could appoint to further his plan.
He's already floated the idea of bringing back retired Army Lt. Gen. Michael Flynn, who served briefly as the national security advisor in the Trump administration and twice pleaded guilty to lying to the FBI during its Russian interference probe before being pardoned by Trump. In the wake of the 2020 election, Flynn suggested that Trump could snatch up voting machines and order the military in some states to aid in rerunning the election.
Attempts to invoke the Insurrection Act would likely garner pushback from the Pentagon where the new Joint Chiefs of Staff is Gen. Charles Q. Brown. Brown was among eight members of the group who signed a memo to military personnel in the aftermath of the Jan. 6, 2021, Capitol attack emphasizing the oaths they took and called the day's attempts to stop the certification President Joe Biden's electoral victory "sedition and insurrection."
Throughout history, presidents have issued 40 total proclamations invoking the law, some of which were done multiple times for the same discord, Nunn told the AP. Lyndon Johnson invoked it three times — in Baltimore, Chicago and Washington — in response to the civil unrest in cities following the 1968 assassination of Dr. Martin Luther King Jr. Dwight Eisenhower sent the 101st Airborne to Little Rock, Arkansas, to protect Black students who were integrating Central High School after the state's governor called the National Guard to prevent them from doing so.
George H.W. Bush was the last president to invoke the act in response to the 1992 Los Angeles riots that followed the acquittal of white police officers who beat Black motorist Rodney King in a videotaped incident.
Repeated attempts from Trump to invoke the act could apply undue pressure on military leaders, who could face consequences for their actions even if carried out at the president's behest.
Michael O'Hanlon, the director of research in foreign policy at the Brookings Institution think tank, told the AP that the question is whether the military is being imaginative enough with the scenarios it presents to future officers. Ambiguity 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,” O’Hanlon, who specializes in U.S. defense strategy and the use of military force, told the outlet. “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 summon the military.
Rep. Pat Ryan, D-N.Y., the first graduate of the U.S. Military Academy to represent the congressional district that includes West Point, told the AP that he took the oath three times while attending the school and additional times during his time in the military. He added that classes extended much focus on an officer's responsibilities to the Constitution and the people under their command.
“They really hammer into us the seriousness of the oath and who it was to, and who it wasn’t to,” Ryan said, adding that he believed it was universally understood, but the Capitol attack "was deeply disturbing and a wakeup call for me.”
While those connections were troubling — several veterans and active-duty personnel were charged with crimes in connection to the riot — Ryan said he thinks those who feel similarly to the rioters make up a small percentage of the military.
A military officer is also not forced to follow "unlawful orders," William Banks, a Syracuse University law professor and national security law expert, told the AP. Forcing an officer could drum up a difficult situation for leaders whose units are called on for domestic policing since they can be charged for carrying out unlawful actions.
“But there is a big thumb on the scale in favor of the president’s interpretation of whether the order is lawful,” Banks said. “You’d have a really big row to hoe and you would have a big fuss inside the military if you chose not to follow a presidential order.”
Nunn, who has suggested steps to inhibit the Insurrection Act's use, expounded on that point, explaining that military personnel cannot be ordered to break the law.
“Members of the military are legally obliged to disobey an unlawful order. At the same time, that is a lot to ask of the military because they are also obliged to obey orders,” he told the AP. “And the punishment for disobeying an order that turns out to be lawful is your career is over, and you may well be going to jail for a very long time. The stakes for them are extraordinarily high.”
During an MSNBC appearance, NBC News presidential historian and author Michael Beschloss urged Americans to take Trump's voiced plans to invoke the law should he win in 2024 "seriously," recalling how some Americans following Trump's 2016 victory said his campaign comments about violence and presidential powers were "just bluster" and that the former president was really a "moderate who loves to make deals."
“Remember that? That was all totally wrong," Beschloss warned per HuffPost. "Take him at his word."
He went on to note that Trump has said he'd use the military, unlike his predecessors, to "suppress his domestic opponents" and referenced evidence from the House Jan. 6 Committee's probe that pointed to how frequently Trump "was aching to use the Insurrection Act to send in the American military into a city or a state to crush the opposition."
“This is what authoritarians do. This is what fascists do," Beschloss insisted.
He later expressed surprise that the 2024 GOP primary frontrunner and his allies had been so open with their agenda, arguing the move was likely not in his best interest "because if he wants to get elected next year, it probably makes more sense to him to pretend to be someone who’s more moderated.”
Beschloss then noted that, even with several of Trump's allies threatening to resign in the aftermath of the 2020 election if he invoked the law or abused his presidential power, the former president continued at rallies to hint at his authority to use the law.
"If you elect Donald Trump, we're going to incur the serious danger that all of us Americans are going to be living under a presidential dictatorship," Beschloss concluded. "That's not what our founders intended."
