Well, that was dangerous — and absurd.
On Tuesday, the president of South Korea, Yoon Suk Yeol, suddenly declared martial law. He suspended political activity in one of the world’s most advanced and prosperous democracies and attempted to place the media under government control.
Seemingly confused and surprised troops struggled to contain a rebellious National Assembly, which voted immediately to end military rule, but not before a series of chaotic scenes that shocked the nation. The president backed down, mere hours after triggering a political crisis that threatened democratic rule.
As the drama played out in South Korea, my phone lit up with a question from friends and media colleagues — including from some of the most sober-minded people I know. Can this happen here? Can an American president — or any other American leader — create a similar political emergency?
The short answer is no. The longer answer is yes — if a president (or a governor) exploits ambiguities in American law.
Let’s deal with the short answer first. Unlike South Korea, the United States has no clear constitutional mechanism for a president to simply declare military rule. State governors do have the ability to declare martial law in the event of an emergency, but governors can’t abrogate the federal Constitution, and any declaration of state military control is subject to judicial review.
There have been a number of limited declarations of martial law in American history. Gen. Andrew Jackson declared martial law in New Orleans for three months during the War of 1812, and President Franklin D. Roosevelt declared martial law in Hawaii after the Japanese attack on Pearl Harbor, to give two examples.
In addition, President Abraham Lincoln declared martial law in 1862 and applied it to “all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States.” But there is no American constitutional authority for military rule comparable to the one in the South Korean Constitution.
The longer answer, however, is far less reassuring. While there is no constitutional mechanism for military control, history demonstrates that American leaders will sometimes press their war powers beyond the constitutional breaking point (while Roosevelt’s declaration of martial law in Hawaii was defensible, his internment of Japanese Americans was not).
Even worse, there is a statutory basis for military intervention in domestic affairs, and the statute — called the Insurrection Act — is so poorly drafted that I have come to call it America’s most dangerous law.
The Insurrection Act is almost as old as the United States itself. The law dates to 1792, and it permits the president to deploy American troops on American streets to impose order and maintain government control.
There is nothing inherently wrong with granting a president such power, so long as it is properly circumscribed. There are numerous examples of lawless defiance of government authority, from the Whiskey Rebellion in George Washington’s second term, to the Civil War, to southern resistance to Reconstruction and to the Los Angeles riots in 1992 (the last time the act was invoked).
But the statute itself is terribly written. The first section isn’t problematic — it permits the president to deploy the military upon the request of a state legislature or governor, if the legislature can’t convene. That makes sense. If a governor has lost control, he should be able to appeal to federal forces for help.
The next two sections of the statute, however, are much worse. Section 252 of the act gives the president the authority to deploy troops domestically “whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”
Section 253 has similar language, granting the president the power to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination or conspiracy.”
Note the extreme trust placed in the president. He can call out troops when he considers it necessary. There is no congressional oversight. If he believes he needs troops in the streets, he can order troops in the streets.
And in fact, Trump almost invoked the Insurrection Act during his first term. In the summer of 2020, he considered ordering federal troops to suppress the urban unrest that exploded after the murder of George Floyd, but he ultimately backed down after his secretary of defense, Mark Esper, publicly stated his opposition to Trump’s plan.
Since he left office, however, Trump has openly regretted not deploying troops in 2020, and his allies have urged him to use the Insurrection Act during his second term, to control the border or to suppress demonstrations. Or both.
But the Insurrection Act isn’t the only dangerously ambiguous and open-ended provision of American law that could expand the authority to use the military for domestic law enforcement. Presidents aren’t the only American leaders who can cause chaos, and a number of Republican governors are seeking to expand their own authority to use force.
Article I, Section 10 of the Constitution denies states the power to engage in war unless they are “actually invaded.” Article I, Section 9 protects the writ of habeas corpus (an ancient legal doctrine that allows an imprisoned person to petition for release) “unless when in Cases of Rebellion or Invasion the public safety may require it.”
Lincoln relied on Article I, Section 9 when he revoked habeas corpus during the Civil War, an obvious case of rebellion.
You might think that the meaning of these passages is clear, that an invasion is easy to define. Think, for example, of Russia’s invasion of Ukraine or of North Korea’s invasion of South Korea in 1950 — violent attacks that are intended to destroy or occupy sovereign nations.
Yet a number of red-state governors — including, most notably, Gov. Greg Abbott of Texas — have deemed the surge of migrants at the border an “invasion.” Texas used this purported invasion to justify placing barriers in the Rio Grande, although those barriers would otherwise violate federal law.
Earlier this year, Ilya Somin, a law professor at George Mason, wrote a piece in Lawfare explaining the original public meaning of “invasion” in the Constitution. In the words of James Madison, the term refers to “an operation of war,” and “to protect against invasion is an exercise of the power of war.”
Frank Bowman, a professor emeritus at the University of Missouri School of Law, wrote in Just Security that throughout the 1787 Constitutional Convention and the ratification debates, “With a handful of exceptions where ‘invasion’ is used metaphorically, as when referring to an ‘invasion of rights,’ the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response.”
In a decision issued in July, the Fifth Circuit held that the Texas barriers did not conflict with federal law, but they did so without answering whether the migrant surge constituted an invasion within the meaning of the Constitution.
In a concurring opinion, however, Judge James Ho — who is reportedly on Trump’s short list to fill the next Supreme Court vacancy — wrote that it’s not for courts to decide whether an invasion occurred. That’s a political question, to be decided by the elected branches of government. Under this reasoning, if the president says there’s an invasion, then there’s an invasion. Similarly, if a governor says there’s an invasion, then there’s an invasion.
If Ho’s reasoning was adopted by the Supreme Court, then unscrupulous presidents and governors would enjoy immense new authority over war, peace and due process. Economic migrants and asylum seekers could be treated as enemy combatants. Presidents could order large-scale detentions, without granting detainees access to federal courts.
Before the Trump era, not that many Americans perceived how much our democracy’s very survival depended on the honor and decency of American presidents. Yes, our Constitution is full of checks and balances, but it doesn’t address every contingency, and broad statutes give presidents far too much potential authority.
President Biden and his allies in Congress did important work to shore up American democracy. By amending the Electoral Count Act, they helped protect presidential elections from another effort at a Trump-style coup, to give one example. But the Biden administration focused on preserving elections, not on reforming the powers of the presidency.
Trump can still use the Insurrection Act to call out the troops when he wants to call out the troops. He can declare an invasion and dare the courts to disagree. Neither power is as broad as a South Korean president’s power to declare martial law, but they are dangerous to American democracy.
We have long trusted presidents not to abuse their power, and most presidents have proven worthy of that trust. Trump is not. While we can hope that the courts and Congress will restrain him in his second term, American law gives him more power than he should rightfully possess.
Some other things I did
I’ve written quite a bit since my last newsletter. My column on the last Sunday in November warned about two potential Trump legal maneuvers that could magnify the power of the presidency beyond its constitutional bounds:
These are the times that try a constitutional conservative’s soul.
Donald Trump and his allies have proposed two legal maneuvers that could have profound consequences for the function of the federal government. He has proposed confirming presidential appointments through an abuse of his power to make recess appointments, and his allies have proposed reviving a mostly banned practice called impoundment, under which the president can refuse to spend money appropriated by Congress.
These proposals together would gut core constitutional functions of Congress and could make Trump our nation’s most imperial peacetime president.
My column last Sunday was part of our annual Times Opinion giving guide. I wrote about a wonderful Nashville charity called Room in the Inn:
I won’t forget the first time I volunteered for a Nashville homeless ministry called Room in the Inn. It was decades ago, in 1990, on a cold night in the dead of winter. I drove to my church, walked into the kitchen and immediately started cooking more food than I’d ever made in my life. We were making lasagna for roughly 20 men who were due to arrive at the church at any moment.
The model for the ministry was simple. In the late afternoon, homeless and vulnerable people would arrive at a central location in downtown Nashville, and dozens of church buses, vans and other vehicles would take them in small groups to a participating church in the city. Once our guests arrived, we’d make them a good meal, and we’d hang out while they washed their clothes or showered or just relaxed.
My first night at Room in the Inn, I played basketball with a small group of Guatemalan migrants. Another night, I listened while a young Mexican immigrant gave a practice sermon in English. He wanted to be a pastor, and he was trying to work his way off the streets. On still another night, I ached for a trucker who described a life of indescribable loss.
I also wrote about Trump’s announcement that he wants to replace the current F.B.I. director, Christopher Wray, whose term is supposed to end in 2027, with a sycophant named Kash Patel:
The perfect expression of the authoritarian approach to the rule of law comes from a former Peruvian president, Óscar Benavides: “For my friends, everything; for my enemies, the law.” The truly corrupted legal system combines impunity for the ruling class with punitive repression of political dissent.
When Jack Smith moved to dismiss his federal cases against Donald Trump, that clearly signaled Trump’s impunity. It was a representation of the adage that might makes right. He won, so he now enjoys a privilege from prosecution.
The selection of Kash Patel to lead the F.B.I. — a move that would require firing or forcing the resignation of Christopher Wray, the current F.B.I. director, well before the end of his 10-year term — demonstrates Trump’s commitment to repression and revenge.
On Tuesday, I joined my colleagues Patrick Healy and Ross Douthat to discuss President Biden’s decision to pardon his son, Hunter. I was not a fan:
As a father, I think it would be very, very hard to watch your son go to prison — especially if you have the power to set him free. I can’t imagine the pain of watching Hunter’s long battle with substance abuse and then watching his conviction in court. But in his role as president, Biden’s primary responsibility is to the country and the Constitution, not his family.
As president, this pardon represents a profound failure. Biden was dishonest — he told us that he wouldn’t pardon Hunter — and this use of the pardon power reeks of the kind of royal privilege that is antithetical to America’s republican values.
And finally, I participated in a podcast discussion with several of my colleagues to talk about what Biden should do in these final weeks of his term. My proposal was simple: Help Ukraine:
From the beginning of the war, Western powers froze more than $200 billion in Russian assets. That is a sum of money that could really assist in propping up the Ukrainian economy, propping up Ukrainian arms purchases. It would be a tremendous assistance to the Ukrainian war effort, plus a real blow to Russia if it were permanently deprived of those assets.
And so, the proposal is that President Biden spend at least some of his remaining time in office trying to persuade our Western allies to not just freeze the assets but seize the assets for the use of the Ukrainian war effort, thus dealing an immense financial blow to Russia and providing a financial windfall to Ukraine that Ukraine could use to continue its war.
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