On June 1, Donald Trump unleashed military and police forces to remove peaceful protesters near the White House for a photo op at St. John’s Church. Just before his peculiar and tone-deaf stunt, Trump threatened to continue to use military forces across the country. Trump’s autocratic strongman threat and antic was met with immediate rebuke. Former Defense Secretary General Mattis, for instance, ended his self-imposed silence and accused Trump of making a mockery of the U.S. Constitution. Episcopal Church Rector Robert called Trump “an awful man, waving a book he hasn’t read, in front of a church he doesn’t attend, invoking laws he doesn’t understand.”
Yet, despite the rebuke, Trump, just yesterday, threatened to “take back” the city of Seattle after a group of peaceful protesters claimed they did not need police protection. Trump’s zeal inevitably was buoyed by Senator Tom Cotton (Rep. Ark.) in a New York Times op-ed. Citing almost no law or other legal authority, Cotton filled a page with contempt for young Americans, and mightily tried to defend his panjandrum’s threat. In his now classic hyperbolic and sarcastic tone, see Cotton’s remarks on the Trump Impeachment, without any documentation or other data, Senator Cotton called the protests an “orgy of violence.” Again, without citing to any details, data, or other proof, Cotton claimed the protests had “cadres of left-wing radicals like antifa,” some looters “drove exotic cars,” with bans of looters “emptying hundreds of businesses.”
Two Days after the Cotton Op-ed, the New York Times issued a retraction of sorts. The Times added an editor’s note concluding the Cotton op-ed fell below the paper’s standards, and should not have been published. But the damage was done: The Times’ failure to engage in careful editorial standards with the initial op-ed, allowed Senator Cotton’s legally and factually flawed analysis to be published, and in all likelihood, thousands, if not more, have read it. To add to the parade of errors, the Times has thus far only achieve to ammunition to an illegal power grab, and its damage continues. The Cotton Op-ed has not been, until now, unmasked for its legal shortcomings, and in fact remains available online with a search of NY Times Op-eds. More importantly, Cotton and his wrong-headed view of the law has become a cause celebe on the use of the military on domestic land for conservative platforms, such as Fox News. Indeed, FOX News has featured Cotton’s position numerous times since the op-ed and the Times retraction
As a result of this comedy of errors, what remains is an attempted power grab, its flawed legal defense, and a woeful failure by the media to correct the record. Trump and Cotton are flat out wrong on the facts, and more importantly, the law. Tragically, their positions can, and may very well endanger lives in the near future. In terms of Cotton’s peculiar and incorrect view of presidential power. In his op-ed defending Trump’s legal authority, Senator Cotton failed to provide a single piece of authority for a president’s power to engage in the nationwide action against U.S. citizens. Instead, Cotton spent one sentence citing applicable statutory authority, and listed several instances were the military was used to address isolated geographical disturbances.
Despite Cotton’s protests, and Trump’s ill-informed threats, no president has the power Cotton champions. Why? The Posse Comitatus Act outlaws the use of U.S. Military to execute the law domestically unless expressly authorized by the Constitution or an act of Congress. While there is no constitutional authorization, the 1807 Insurrection Act does provide authority to act. However, the act authorizes only three narrowly tailored basis for a president to use the military on domestic soil. The first is Section 331, which arises “upon the request of its legislature or of its governor.” No state has made such a request here. Second, Section 332 allows a president to stop a rebellion where the rebellion makes it impracticable to enforce the law. The Floyd protests are simply not making it impractical to enforce any law. In fact, the states and the protesters alike have stopped the looters. The final basis is Section 333, which allows a president to thwart unrest that deprives the people of their constitutional rights and the state is unable or refuses to act. Despite Cotton’s list of horrors, the recent protests have not hindered the execution of laws, and as mentioned above, have actually thwarted the violence. Reading Cotton’s account, one would think a true rebellion was afoot, and cities were burning.
Further, the Insurrection Act does not give the sweeping power the both men envision. The Insurrection Act has only been used for geographically isolated occurrences, such as the 1957 effort to halt obstructions to enrollment and attendance at public schools in the Little Rock, Arkansas School District; and in 1962 and 1963 in Mississippi and Alabama to enforce civil rights threatened by protesters to desegregation. Indeed, Cotton cites these very same isolated applications of the use of the Insurrection Act, but what he does not do, and cannot do, is to provide one instance to support the Trumpian threat of a nationwide deployment. There is simply no historical support for his position. Perhaps what is behind the military threat is an effort to make the president appear strong and effective, unlike so many of the President’s other recent undertakings?
President Trump may want to be the arbiter of when rights are violated (the irony is not lost here). However, to allow a tortured reading of a 200-year-old statute to support unfettered sweeping power across the entire nation that supersedes state authority, would allow a president to resemble a monarch or dictator, and not a leader of a system with checks and balances. Senator Cotton, protest as he has, simply got both the facts as well as the law wrong. Finally, when are Trump and Cotton going to stop using condescension, pretext, inaccuracies, obfuscation, and legal distortions to thwart racial justice?
In fairness to 45, he has ample legal authority to use the military inside the U.S. to enforce federal laws. See: https://priorprobability.com/2020/06/02/recap-of-the-laws-of-national-necessity/
Of course, whether the military ought to be used is a normative question, and I for one would like to see Congress repeal the 1807 Insurrection Act as well as the 1861 Suppression of Rebellion Act, but it is beyond disingenuous to question is his legal authority in this domain.
Thanks Enrique, and kudos for your publications on the subject. you and I do evidently differ on the "ample" authority of a president you reference in your comment. Perhaps my essay was not clear enough, but I do refer to the authority you cite in your prior writings. See my references in the ante-penultimate paragraph in the essay. In other words, I address the citations you set forth in your work: See https://priorprobability.com/2020/06/02/recap-of-the-laws-of-national-necessity/ We just differ on whether any of these statutory factual or legal perquisites are met in the Black Lives Matter (or George Floyd) protests. Thanks for causing me to pause for a second, and continued success.
Thanks for your post, Enrique. It appears we differ on the notion of "ample" authority. In truth, it is perfectly appropriate to question a president's authority in this context because it is in fact limited. Indeed, if you review my essay, you will note in the anti-penultimate paragraph, I review the very same authority as the article you wrote. Thus, far from being disingenuous–bit of an overstatement on your part–it appears your legitimate issue addresses whether the statutory basis for the use of the military has been met. You may think it has? I do not, as I point out in my essay. In any event, thanks for your comment, at least it caused me to pause for a second. It is also good to hear from you after meeting you so many years ago at the faculty recruitment conference. Wishing you continued success.
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There is another source of authority, though given Democratic control of the House it is not yet in play, and perhaps won't be: the Guarantee Clause. Under authority of an identical provision in the Argentine Constitution, the Argentine central government has intervened on more than 150 occasions in the affairs of the provinces for the purpose of "restoring" republican government. Needless to say, these interventions have been undertaken mainly during periods of either outright authoritarianism or, at the least, profound centralization of power, and the targets have been largely provinces controlled by the political opposition.
Your country is rampant with protests and riots during a global pandemic. Millions of people are dying. Moreover, your own particular ethnic will-to-power masquerading as the defence of the rule of law and immigrants' rights – all whilst systematically defiling immigration and labour laws – is a fraud.
In your own myopic insular American world, you conceive of yourselves as the good guys fighting for rights, law, justice, and inclusiveness against lawless, racist, autocrats. You are only fooling yourselves and half of your fellow Americans. Indeed, it is becoming increasingly clear to the rest of the world that your nation's legal scholars are neither honest interlocutors nor serious academics engaged in a truth-oriented enterprise.
Stop making a joke of yourselves and the very idea of the academy.