In Case of Emergency, Break Precedent

by Scott Wagner

Illustration by Gabriela Sibilska

President Donald Trump has grown accustomed to speaking over a soundtrack of adoring followers showering him in ebullient nationalistic fervor when he takes the stage at his campaign rallies. On Monday, in his address to the nation from the White House Rose Garden, he spoke over a soundtrack of violence. Explosions drummed in the distance as President Trump—who, just a few months ago, was impeached for obstruction of justice—preached the values of law and order. Moments before he began his address, police officers tear-gassed peaceful protesters gathered in front of the White House. The demonstrators were calling for justice for George Floyd and an end to police brutality and racial atrocities. Trump called the protesters “professional anarchists, violent mobs, arsonists, looters, criminals, rioters, Antifa, and…dangerous thugs.”


The president, as he has so often before, cast blame for the protests elsewhere. Today, the scapegoats are state and local governments, who Trump claims “failed to take necessary action to safeguard their residents.” He recommended that every state deploy its National Guard to quash the dissent. If governors failed to do so, Trump declared, “then I will deploy the United States military and quickly solve the problem for them.”


The pronouncement invoked images of camouflaged tanks rolling down Main Street, of Tiananmen Square meets Times Square. And—as with most of the laws regarding federal power—his legal ability to do so is murky at best. But a historical perspective puts Trump’s declaration in its proper context: the use of US federal soldiers as a domestic police force is almost unprecedented and represents a frightening extension of executive power.


The idea of a standing army was abhorrent to the statesmen who laid the foundations of the American republic. In a speech presented to the Constitutional Convention in June 1787, Virginian statesman James Madison warned that “a standing military force, with an overgrown Executive will not long be safe companions to liberty.” He and the other Founders believed that a standing army would become a tool of tyranny for a centralized government. “Throughout all Europe,” Madison continued, “the armies kept up under the pretext of defending, have enslaved the people.” In a letter to David Humphreys, Thomas Jefferson called standing armies “instruments so dangerous to the rights of the nation.” He preferred a system of collective security centered on the role of state militias, which could both provide for the common defense and serve as a bulwark against the authoritarian tendencies of a centralized state.


The Founders recognized, however, that the federal government required some recourse to preserve law and order in the new republic. Article I, Section 8 of the US Constitution grants Congress the permission to call up state militias to “suppress insurrections.” The new federal government needed to resort to that clause almost immediately. In 1791, farmers on the frontiers of the new republic began protesting a tax on whiskey by harassing tax collectors and refusing to pay the proper tariffs on the spirit. Resistance escalated in the summer of 1794, when a large group of Pennsylvanians attacked the home of a tax collector in the western part of the state. President George Washington requested state militia units from Pennsylvania, Virginia, Maryland, and New Jersey; the states responded by providing 13,000 men for temporary federal service. Washington himself led the army into Pennsylvania—still the only instance of a sitting US president leading an army on campaign—and the rebels dispersed before a single shot was fired. Crucially, though, it was the state militias that quelled the Whiskey Rebellion; the nascent federal army played no part in the campaign.


Given his previous aversion to standing armies, it is ironic that Thomas Jefferson expanded the potential for using the federal army as a police force. In 1807, Jefferson’s administration passed the Insurrection Act. The statute acknowledged the right of the president “to call forth the militia for the purpose of suppressing such insurrection,” and extended that right to include “such part of the land or naval force of the United States, as shall be judged necessary” to combat the domestic threat. It is this piece of legislation that the Trump administration has invoked to defend its response to the current riots. Ostensibly, according to the statute, the president could deploy the national military to serve as a domestic police force—a far cry from Jefferson’s previous vision of virtuous state militias. Despite the seeming shift in the law, public sentiment was still apprehensive of any role for the national army in domestic affairs. Jefferson never invoked the law, and it remained on the shelf collecting dust for much of the nineteenth century.


Attitudes changed, if only temporarily, during the American Civil War (1861-65) and the subsequent period of Reconstruction. Following the conflict between the Union and the breakaway Confederate States of America, federal soldiers were deployed throughout the Southern states to protect the hard-won freedom of former slaves and ensure that no further rebellions flared up in Dixieland. Southern states had built their economies—and, indeed, their entire social hierarchies—upon the racialized system of slavery. The nation dedicated to those views may have been destroyed, but the views themselves were firmly entrenched throughout the South. Force seemed to be the only method to impose reform on the former Confederate states.


Violence is, however, a poor reformer. Despite the presence of federal soldiers in the South, racial violence was endemic, and the new freedoms proffered to former slaves posed new challenges for Republican Reconstructionists. The Grant administration passed the Enforcement Acts of 1870 and 1871 to further enshrine voting rights and legal protections for black Americans. The last of these acts restated the right of the president “to take such measures, by the employment of the militia or the land and naval forces of the United States…as he may deem necessary for the suppressions of such insurrection, domestic violence, or combinations.” The new legislation had little practical effect; federal soldiers were unable to enforce acceptance of the new racial freedoms, and the torches of the Ku Klux Klan continued to burn an inferno of injustice across the South.


The election of 1876 and the passage of the Posse Comitatus Act two years later brought an end to the experimentation of using federal soldiers as police units. The 1876 presidential election saw Democrat Samuel Tilden win the popular vote over Republican candidate Rutherford B. Hayes. But a number of electoral votes from the South remained unallocated due to widespread allegations of voter suppression and electoral fraud. If the election returns were accurate, Hayes would triumph over Tilden in the electoral college by a single vote. An insidious compromise decided the matter: Hayes would be declared the rightful winner, but, in exchange, all federal troops would be withdrawn from the South, where the Democratic party remained widely popular. With the federal troops out of the way, Southern states set about dismantling the legislation of Reconstruction, tearing down Abraham Lincoln and replacing him with Jim Crow.


The Southerners got the federal soldiers out, but they wanted to slam the door behind them. The Great Railroad Strike of 1877 gave them their opportunity. The long-running economic depression of the 1870s coupled with poor working conditions on the railways and antagonistic labor relations had brought tensions to a fever-pitch by the summer of 1877. When the Baltimore & Ohio Railroad announced the third wage cut of the year, workers went on strike. Railroad workers across the country joined the protest, which soon included some 100,000 workers and effectively halted rail travel throughout the United States. When state militia units proved ineffective in combating the strikers, President Hayes deployed the federal army. The soldiers succeeded in ending the strike; most railway workers chose to dissipate like the Whiskey Rebels years before, rather than stand and fight against trained federal units. But the deployment of the army against American citizens raised hackles nationwide. The Democrats, then in control of Congress, seized the political moment to pass the Posse Comitatus Act of 1878. That legislation declared that “it shall not be lawful to employ any part of the Army of the United States…for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.”


Posse Comitatus enshrined what Americans had long believed: federal soldiers should not be used against American citizens. The US Army was not deployed during any of the labor riots of the early twentieth century. Most of the major clashes of the Civil Rights Movement in the 1960s featured local police officers and National Guard units, not federal soldiers. With the United States expanding its interest overseas in the twentieth century, military power was increasingly applied abroad. At home, responsibility for domestic order fell to municipal and state governments.


Posse Comitatus does not, however, prevent the federal government from deploying troops at the request of state and local officials. Subsequent legislation offers numerous loopholes and exceptions to the blanket ban proposed in the original Posse Comitatus Act. Federal units have been deployed to respond to natural disasters and to provide additional security from terrorist attacks. The most recent use of federal soldiers as police units came in 1992, when President George H.W. Bush deployed 4,000 soldiers to the city of Los Angeles to assist in restoring order during the Rodney King riots. The riots began after four white police officers were acquitted on charges of excessive force, despite the fact that video footage of them beating Rodney King, a black man, was widely televised. The protests engulfed the city for six days and overwhelmed the Los Angeles Police Department. Unsure how quickly the California National Guard could be deployed to the scene of the protests, Los Angeles Mayor Tom Bradley called for an influx of federal troops. California Governor Pete Wilson seconded the request. But by the time the federal soldiers arrived in Los Angeles, the LAPD and the California National Guard had largely regained control of the city; the federal troops played almost no role in the police action.


There is one unique instance in the twentieth century of federal units being deployed against the express wishes of a state government. In 1954, the Supreme Court ruled that the doctrine of “separate but equal” was unconstitutional in the landmark case Brown v. Board of Education, legally desegregating the American school system. The Governor of Arkansas, Orval Faubus, refused to allow Central High School in Little Rock to desegregate, sending in the National Guard to “maintain the peace and good order of the community”—or, put more accurately, to preserve the unjust system of educational segregation. In doing so, Faubus put the state of Arkansas in direct confrontation with the laws of the federal government. President Dwight D. Eisenhower responded with force. He deployed the 101st Airborne Division to protect the nine black students scheduled to attend Central High. Eisenhower used the aforementioned Enforcement Acts as the basis for his unorthodox decision. The presence of federal troops in Little Rock quelled any inkling of violence, but dissent simmered; Faubus complained that Arkansas had become “an occupied territory” and derided what he saw as Eisenhower’s “police state methods.”


Arkansas Governor Orval Faubus speaks at a rally protesting the desegregation of Central High School in Little Rock, flanked by members of the Arkansas National Guard. Library of Congress

The deployment of American soldiers against American citizens is not entirely unprecedented; the way President Trump intends to do so, however, marks a fundamental shift. No state or local governors have requested federal support. Instead, Trump intends to supersede local authority by imposing the might of the federal government. He is determined to quash the protests with the draconian power of federal authority, states’ rights be damned. Executive overreach has happened before; this time, it’s being done at gunpoint.


President Trump strides upon dangerous and uncharted grounds with his declaration of military intervention. The unambiguous belief that Black Lives Matter should not be a partisan statement, but the recent protests have already been sucked into the maelstrom of hyper-partisanship. While Trump derides the protesters as “radical left anarchists,” Joe Biden has met with protesters and city mayors to hear their grievances. Members of his staff have donated to efforts to provide bail money for jailed protesters. Where commentators on the right focus on the vandalism committed during the protests, commentators on the left focus on the central message of the protest: that racial injustice and police brutality can no longer be tolerated. While some Americans may perceive military deployment as a defense of law and order, a considerable portion of the country will see it as a baldly political maneuver meant to improve Trump’s election chances in November by leaning into white identity politics and vain, misguided displays of masculinity. The US Army is not meant to serve as a domestic policing force, and it is certainly not meant to be used as a political tool by the President of the United States. But in times of emergency, Donald Trump breaks the glass.


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INTERZINE | 2020