President Trump’s escalating efforts to deploy armed troops onto the streets of several American cities run by Democratic officials are raising a question courts have been all but completely able to avoid since the Constitution was drafted: Can presidents unleash the armed forces on their own people based on facts that they contrive?
The text of the relevant statutes doesn’t answer that question. But our constitutional ideals, to say nothing of common sense, should — and the answer must be no.
Contrary to some Trump critics, the president’s actions in Washington and Los Angeles as well as the developing situations in Portland and Chicago are not tantamount to imposing martial law. That’s only when the military supplants civilian government, not when it supplements it. Indeed, if there were consensus among officials and citizens that civilian authorities could not adequately enforce the laws, there would likewise be consensus that Congress has given the president the power to use federal troops — whether regular or federalized National Guard personnel.
The problem instead is that many Americans don’t believe the president’s claims. We look at pictures and videos out of Portland and we don’t see “war-ravaged” anything. We look at news reports out of Chicago and see the principal violence coming from federal officers — not being directed toward them. To put the matter directly, there’s a factual dispute about whether resorting to the military is justified. As Judge Karin Immergut (a Trump appointee) put it sharply in the Portland case, in which she ruled over the weekend that there was no legal basis for sending in troops, the president is acting in a manner that is “untethered to the facts.”
The Constitution’s drafters were not averse to domestic use of the military. One of the immediate catalysts for the 1787 Constitutional Convention had been the embarrassing inability of the national government to respond to Shays’s Rebellion — a relatively modest uprising that began in Western Massachusetts in the summer of 1786. That episode exposed for all to see the impotence of the government created by the Articles of Confederation — and it highlighted the need for a stronger, centralized federal executive. To that end, one of the powers the new Constitution expressly gave to Congress was the power “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”
When Congress first codified that power in 1792, there was little debate about the insurrection or invasion parts. Lawmakers’ concerns focused on when troops could be used for law enforcement. Their response was to authorize such deployments only when local authorities were unable or unwilling to enforce the laws themselves — and only when a federal judge or Supreme Court justice agreed with the president’s determination that those circumstances were present. (The statute they passed is the precursor to what’s known today as the Insurrection Act.)
President George Washington followed those statutory requirements to the letter in 1794, when he used troops to put down the Whiskey Rebellion. In 1795, Congress removed the requirement of ex ante judicial approval (perhaps believing that other presidents would be similarly scrupulous). But Congress still insisted on a series of procedural requirements and time limits for domestic uses of the military. The point wasn’t that the president’s determinations would be conclusive; it was that the president would be allowed to go first — and, where necessary, other institutions could push back.
Until this year, Congress’s 230-year-old choice had been borne out. Presidents of both parties have been especially careful to use the military domestically only in contexts in which there was a clear factual predicate, whether because local authorities were overwhelmed by riots or were refusing to enforce civil rights laws. Indeed, until this year, there was virtually no judicial precedent on the scope of these powers, because their factual limits had not been seriously tested.
The Trump administration has pushed the envelope in three different respects. First, in Washington the administration invoked the federal government’s unique control over the District of Columbia National Guard (and the Metropolitan Police Department) in response to claims about crime rates there that were belied by the Justice Department’s own statistics. In Los Angeles, the administration called out hundreds of Marines and federalized thousands of members of the California National Guard in response to dubious claims that local authorities were unable to keep order, especially in the face of anti-ICE protests. Now the administration’s attention has turned to Portland and to Chicago, near where there has been a long-running, peaceful protest around one of the most visible ICE facilities.
In the California, Oregon and Illinois cases, the administration is trying to walk a legal tightrope. It is invoking an obscure provision in Title 10 (the part of the U.S. Code that deals with the military) to federalize National Guard troops. But that provision authorizes federalization only when “the president is unable with the regular forces to execute the laws of the United States.” And without a request from local officials, the president can use “regular forces” only if “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.”
On Monday, President Trump threatened to invoke the Insurrection Act “if people were being killed and courts were holding us up, or governors or mayors were holding us up.” But the same reason he hasn’t invoked that statute yet should also doom his reliance on the more obscure National Guard authority.
Instead, the federal government is trying to use dubious factual claims about what’s true on the ground in these cities to justify federalizing National Guard troops both from within those states and from outside of them.
That is what we, and more important the courts, face: a factual dispute more than a legal one.
Typically, our constitutional system resolves these kinds of factual disputes through litigation. Neutral judges and juries hear legal arguments and factual testimony and decide for themselves what has, and what has not been, established. But the president’s advisers and supporters have spent the past few days arguing that this is not an appropriate role for the federal courts to play — because the president’s determinations in national security cases should be, and (they claim) historically have been, conclusive.
This, then, is the real legal test President Trump’s deployments raise: Can the courts meaningfully scrutinize the president’s claims, or must they blindly defer? To date, we’ve seen fairly aggressive pushback to the administration’s arguments from the courts — from Judge Charles Breyer in the Los Angeles case and from Judge Immergut in Portland.
The Supreme Court will no doubt have the last word. And the question is going to be whether the president can use a contrived crisis as a justification for sending troops into our cities. In other words, the issue is going to come down to who decides the facts when it comes to domestic use of the military. That question meant one thing when we had presidents who, for whatever reason, were constrained to acknowledge reality. It means something else altogether in an administration for which, to borrow from George Orwell, 2 + 2 = 5.
Stephen I. Vladeck, a professor of law at Georgetown, writes the One First Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
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