[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 6 (Part One): Domestic Military Operations — Reforming the Insurrection Act and Good Governance Paper No. 6 (Part Two): Domestic Military Operations — The Role of the National Guard, Posse Comitatus Act and More.
In November 2020, I wrote two articles as part of Just Security’s Good Governance Papers, arguing that Congress should update and reform four key statutes governing domestic military operations: the Insurrection Act, 10 U.S.C. §§ 251-254; the Posse Comitatus Act, 10 U.S.C. § 1385; National Guard authorities under 32 U.S.C. § 502 (f); and command and control of the D.C. National Guard (DCNG).
The proposed reforms would help reinvigorate Congress’s constitutional role in military governance, which is central to ensuring civilian control of the military. Over time, authority over national security — to include domestic military operations — has shifted to the president. This trend accelerated during President Donald Trump’s presidency, which saw an increased politicization of the military, troops deployed to the U.S.-Mexico border, and even reports that the president was considering invoking the Insurrection Act to hold on to power.
Two months after the Good Governance Papers were published, the U.S. Capitol was attacked — an event that showcased the urgency of such reforms. This tragic event exposed longstanding command and control questions governing military operations in the nation’s Capital. The January 6th Select Committee is attempting to shine much-needed light on why the Pentagon was delayed in its response to the attacks. Still, we are left with more questions than answers.
I was cautiously optimistic that the response to the January 6th attacks, and the shattering of norms that it reflected, would be an opportunity to update and clarify statutes governing domestic military operations. But, just over a year later, very little has changed.
Where do we stand on my Good Governance Papers recommendations?
(1) Insurrection Act
Proposal: The Insurrection Act provides the president with broad authority to deploy the military domestically. 10 U.SC. § 253 in particular has always provided the president enormous discretion to activate and deploy military troops domestically for an open-ended period of time. As Professor Steve Vladeck astutely noted, the use of federal military forces (either federalized National Guard or regular members of the armed forces) has been constrained largely by historical practice and political considerations. Indeed, the Insurrection Act has not been invoked since the Los Angeles riots, and it has been largely tempered by longstanding norms. President George W. Bush, for example, was reluctant to invoke the Insurrection Act in the aftermath of Hurricane Katrina for fear that doing so would be heavy-handed and provoke a political backlash. Trump considered using the Insurrection Act during the summer unrest in 2020, but was rebuffed by senior military leaders at the Pentagon.
A Commander in Chief who disregards constitutional norms could treat the Insurrection Act as something akin to a blank check for domestic military operations in an effort to hold on to power. Earlier this week, Representative Jamie Raskin (D-MD) stated that “President Trump was prepared [after the election] to invoke the Insurrection Act and to declare something like martial law.” To be sure, it remains unclear how seriously President Trump considered invoking the Insurrection Act after the election. Still, he met with advisors — such as former national security advisor Michael Flynn — who advocated that Trump impose martial law, reflecting a willingness to entertain norm-violating options.
To address this open-ended authority, I proposed revising the Insurrection Act to include a sunset provision any time military personnel are deployed under the Act. I argued that Congress should mandate affirmative congressional authorization after 20 days, somewhat analogous to the time limits and legal guardrails put in place in the War Powers Resolution for overseas military deployments in the absence of a war declaration.
Status: Unfortunately, the Insurrection Act has not been amended. An early version of the 2021 National Defense Authorization Act required a president to make “certifications to Congress” before invoking the Insurrection Act, but the language did not make it into the final version of the NDAA. Reform remains more urgent than ever, particularly in light of concerns made public this week that the Insurrection Act was considered as a viable legal tool to maintain control of the presidency.
(2) Posse Comitatus Act
Proposal: As a statutory matter, the Posse Comitatus Act (PCA) prohibits federal (“title 10”) Army and Air Force personnel from serving in an active law enforcement capacity. As a regulatory matter, the Department of Defense applies these PCA restrictions to the Navy and Marine Corps. Federal military forces may directly participate in law enforcement matters when deployed primarily for a “military purpose.” The PCA does not provide a bright line between direct and indirect assistance, much less define “military purpose” or say anything about militarized federal civilian troops.
I argued that the PCA should be updated to expressly include all branches of the armed forces — the Army, Air Force, Marine Corps, Navy, and newly created Space Force. The Coast Guard and state National Guard forces should remain exempt. Further, the PCA should clarify what is meant, exactly, by both “executing the laws” and “military purpose.”
In addition, for non-military federal law enforcement, Congress should mandate consistent uniform regulations for each federal law enforcement agency and require formal notification procedures to the state and local authorities prior to deploying. In 2020, federal agents from the Bureau of Prisons and other federal law enforcement officers were deployed to cities. They wore military-stylized camouflage with no clearly identifying insignia, raising concerns about accountability and transparency.
Status: Unfortunately, the Posse Comitatus Act remains unchanged. One promising development, however, was a provision introduced in the NDAA for fiscal year 2021, and codified at 10 U.S.C. 723, requiring federal military and civilian law enforcement personnel involved in a “civil disturbance” to wear visible identification of themselves as well as the name of the government entity employing them. The Department of Homeland Security has also, thankfully, replaced military-style uniforms for federal police officers.
(3) National Guard Authorities Under 32 U.S.C. § 502 (f)
Proposal: 32 U.S.C. § 502(f) states that a member of the National Guard may “be ordered to perform training or other duty” (emphasis added) under Secretary of the Army regulations. “Other duty” is undefined. This was the apparent legal authority that was repurposed by the U.S. Department of Justice as an Insurrection Act loophole by Attorney General Barr in summer 2020 to bring outside National Guard members into the nation’s capital. This occurred without the formal federalization of the Guard that the Constitution envisions and without invoking the Insurrection Act. I argued that this loophole should be closed. Congress should clarify when, precisely, this authority can be invoked and should clearly define “other duty.”
Status: There have been no legislative proposals to clarify what is meant by “other duty.” 32 U.S.C. § 502 (f) remains unchanged. Of note, this authority has been used to activate National Guard in a “full-time National Guard duty” status throughout the COVID-19 response, generating some public benefit. Still, the central concern remains that “other duty” may be used to accomplish missions otherwise prohibited by the Insurrection and Posse Comitatus Acts. And a well-crafted reform to the “other duty” clause could still allow for duties in the public interest without leaving the overbroad loophole that, as it stands, poses a national security risk.
(4) Command and Control of the D.C. National Guard
Proposal: The elected chief executive of the District of Columbia, the mayor, has no direct command authority over the D.C. National Guard (DCNG). This lack of control was showcased during the 2020 events at Lafayette Square and the January 6th attack on the Capital, to which the DCNG failed to respond in a timely manner. While questions remain about why the delay occurred, a confusing, bureaucratic command structure played a role in delaying the response. I made two proposals.
First, as the senior elected government official in the nation’s capital (with a population of over 700,000 people — more than two U.S. states), the mayor should have a more substantive legal role in both DCNG operations and determining when state National Guards from outside the area are welcome. Second, Congress should clarify when state governors can deploy their National Guard troops to the District of Columbia.
Status: Senator Chris van Hollen (D-MD) introduced the District of Columbia National Guard Home Rule Act last year. It seeks to provide the D.C. mayor with the “same authority over the National Guard of the District of Columbia as the Governors of the several States exercise over the National Guard of those States with respect to administration of the National Guard and its use to respond to natural disasters and other civil disturbances, and for other purposes.” Under this proposal, the mayor would be the Commander in Chief of the DCNG. Her authority would be analogous to authorities enjoyed by state governors. This is a particularly sensible and thoughtful piece of legislation. Its importance has increased since the muddled response on January 6th, a point made earlier this month by Elizabeth Goitein of the Brennan Center (and fellow Good Governance Papers author), who characterized the D.C. National Guard’s command structure as “outdated and dangerous.”
The January 6th Capitol attack showed how the legal gaps governing domestic military operations can quickly escalate into specific national security threats, making these Good Governance reforms even more urgent. Much of the congressional efforts around January 6th have focused on understanding what happened and building the case against architects of the attack on the Capitol; much of the recent executive action has focused on countering domestic extremism. But another necessary piece of the response to January 6th is understanding what legal gaps allowed things to unfold as they did and working proactively to close loopholes in the statutory regime governing domestic military actions.