The Supreme Court is poised to decide a potentially momentous question for U.S. democracy: can the president unilaterally deploy federal troops on U.S. soil over the objections of state governors? In Trump v. Illinois, the Supreme Court will soon decide whether to issue a stay of a district court’s injunction of the deployment of National Guard troops to Chicago. The government’s brief argues there is “no reason to believe that courts can, or should, second guess the President’s conclusion” that military force is needed to suppress an emergency. “[T]his case,” the brief argues, falls in the heartland of unreviewable presidential “discretion.” Even if judicial review is permissible, the government says, a court must be “highly deferential” to the President’s decision.
The Government’s position cannot withstand even rudimentary analysis. This is because the president’s authority is dramatically weaker when deploying troops domestically than it is when fighting enemies overseas.
Power Over the Military is not Exclusive to the President
The government’s interpretation suggests that a president may deploy military forces anywhere in the United States for any reason, and that courts would have no authority to determine its legality. This assertion runs counter to U.S. history, the structure of powers related to the military in the U.S. Constitution, and the theory of checks and balances.
The Framers and the generation that fought the American Revolution were well aware of the dangers of domestic use of the military. Among the grievances enumerated in the Declaration of Independence, abuse of the military was persistent theme: “He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature,” and “He has affected to render the Military independent of and superior to the Civil Power.” The Third Amendment to the Constitution reflects these concerns in its prohibition on quartering soldiers in civilian homes during times of peace without legislation.
For this and other reasons, the Framers wisely disaggregated the military power horizontally across the three branches of the federal government, as well as vertically between the states and the federal government. They gave Congress the unique power to declare war and appropriate funds for military exploits, along with a series of other war-related powers. They gave the executive branch the authority to command troops in battle. They gave the judiciary the ability to arbitrate disputes among the branches and to protect individual rights. They left to the various states the power to call forth a militia to protect the people within their particular jurisdictions.
In addition to the structural constitutional dissipation of control over the military, statutes like the 1878 Posse Comitatus Act forbid the use of the military for domestic law enforcement. Congress similarly banned the use of troops at polls around the same time. Even the Insurrection Act, which champions of presidential power cite as an ace-up-the-president’s sleeve, says that the president’s power to use the militia or armed forces is, among other purposes, to protect against the deprivation “of a right, privilege, immunity or protection named in the Constitution and secured by law” when the state is unable to protect such rights of the people (emphasis added).
In other words, the power of the president to use the military in times of emergency is arguably tethered to the need to protect the constitutional rights of the people. This is consistent with the president’s articulated duty under Article II of the Constitution to “take care that the laws are faithfully executed.”
No Cause for Deference
The claim of extreme judicial deference to the president rests on a false equivalence of foreign and domestic use of the military. There is plenty of case law that supports broad deference for presidential determinations regarding foreign troop deployments. Of course, federal judges have been reluctant in our more recent history to second guess the decision to use the military to defend the United States against foreign enemies, or to micromanage tactical decisions during the course of a war. But when the president seeks to deploy the U.S. armed forces into American streets, the constitutional rights of Americans are potentially under threat, and courts are therefore duty-bound to exercise the utmost vigilance.
It is no accident that President Donald Trump is sending military forces into places in which there are some displays of opposition to his policies, based on an unsubstantiated and politically-motivated claim that these pose a threat to the country. It is no coincidence that in the midst of these deployments, he summoned every U.S. General from around the world to Washington to inform them that they need to focus on “the enemy within,” and urged them to use American cities as training grounds for the use of military force.
History tells us that deploying the military against one’s own people is the sine qua non of an authoritarian state, and represents the corruption of the military to solidify power. Be it Jews or other religious minorities, immigrants, infidels, suspected criminals, or alleged traitors, the “strong” leader convinces the population that these “others” are the true threat to national security and that therefore a military response is needed. Extreme deference to the president’s domestic use of the military abdicates the fundamental duty of courts to closely examine threats to fundamental constitutional rights of free speech and assembly that are the bedrock of a democracy.
The United States military swears an oath of allegiance to the Constitution. The oath of office of military officers, unlike that of enlisted servicemembers, contains no explicit commitment to follow presidential orders. Following military orders is obligatory, but only insofar as such orders are lawful. The same was true in Nazi Germany until August 2, 1934, when, following the death of President Paul von Hindenburg, the oath to follow the Weimar Constitution was replaced with an oath of allegiance to Adolf Hitler. Following that date, the German military was under the control of the Führer, sealing the death of German democracy until well after the end of the Second World War. More recently, two weeks ago in Madagascar, the civilian government was toppled by a military coup, the latest in a series of African countries to lose civilian control of the government—including military takeovers in Mali, Niger, Chad, Sudan, and Burkina Faso, not to mention those in other regions, including Myanmar.
If the Supreme Court decides to grant certiorari in the Illinois case or in a similar case involving use of the National Guard, such as the Oregon or California cases, the question of deference to presidential authority as Commander-in-Chief will be front and center. The government will once again argue that there is no basis for federal courts to second-guess presidential decisions regarding the deployment of U.S. troops, and that under Article II such second-guessing would be a violation of the separation of powers. Yet this appeal to presidential deference would ignore the basic distribution of military powers in both constitutional and statutory form that has existed for the entirety of U.S. history.
No case holds that the courts are powerless to prevent an illegal deployment of troops within the United States. How could it? Such a holding would render separation of powers meaningless and destroy the judiciary’s role as a bulwark against tyranny. The Court must remember its statement from 1972 in Laird v. Tatum:
“[T]here is nothing in our Nation’s history or in this Court’s decided cases… that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.”
Military rule and military coups have been fanciful, far-off threats in the United States, but President Trump has now made this threat real in his war against “the enemy within.” The Supreme Court must not shirk its obligation to ensure that presidents cannot conscript the military in an effort to undermine democracy.
