The United States Armed Forces and Their Role in Domestic Affairs: Part 2

Part 2: Concerns and Calls for Reforming Laws

The trend toward politicizing the military is a dangerous one. Federal and state troops help maintain the freedoms on which the Republic stands, and misusing them creates a dissonance difficult to overcome. For these reasons, legal scholars and politicians alike have been calling for a tightening of the laws that govern when and how the military and National Guard and Reserves are federally deployed on U.S. soil.

In Part 1 of our series on the armed forces’ roles in domestic affairs, MWEG reviewed those laws and circumstances. Here, in Part 2, we examine the practical and legal implications of these deployments.

Recent deployment of the military troops into multiple U.S. cities raises alarms and challenges the precedent of honoring the intent of ambiguous laws. In fact, many recent military domestic actions face opposition and remain in various stages of litigation.

Response

According to a recent survey, a majority of Americans oppose the use of the military in U.S. cities to control protests, act as law enforcement, or control immigration. Many organizations, officials, and individuals are challenging the recent domestic deployments, including the following organizations, officials, and individuals:

The League of Women Voters has identified the need to reform laws protecting states’ rights concerning military presence in their cities. They cite a failure of the president to consult with the governors of the states impacted and a lack of evidence for need of support. 

Military veterans joined with the American Civil Liberties Union (ACLU) to protest recent deployments and call for bipartisan support of bills intended to more clearly separate the military from local law enforcement.

A group of democratic senators who are also veterans produced a video explaining the rights of troops and potential legal implications of obeying unlawful orders. The president called for the arrest of the senators, accusing them of sedition “punishable by death.” He later walked back the execution piece.

Republican senators, too, are speaking out about the precedent of sending in troops without the consent of state governors. Some say the federalization of National Guard and Reserves in U.S. cities violates both states’ rights and trust of local governments.

State governors have rejected the need for troops in their local communities. When President Trump called for 300 troops to deploy to Chicago, Illinois Governor Pritzker stated, “I want to be clear: There is no need for military troops on the ground in the state of Illinois.” California’s Governor Newsom has spoken out repeatedly about the lack of need for the troops deployed in Los Angeles earlier this year, and a subsequent lawsuit against the federal government remains in litigation.

Need vs. negative consequences?

As troops patrol U.S. cities, officials and citizens alike assess potential needs and consequences. President Trump has cited the need to quell “lawlessness” in democratic cities, and a majority of his supporters who identify as MAGA support his actions.

The increasing opposition to the deployments, however, argues against these actions and their consequences, citing these factors:

Waste of resources: Since National Guard and Reserves are not trained in law enforcement duties and techniques, they are unable to assist in the day-to-day work of local police forces. The specific taxpayer cost for troops to be deployed, housed, and on duty without providing services remains unknown yet is estimated to be more than hundreds of millions so far this year.

Strain on the National Guard and Reserves families and employers: Service members' families and employers feel the strain of their loved ones and employees who are deployed and later reintegrated. The recent deployments beg the question whether the strain is worth the emotional and financial cost, especially in light of some of the duties assigned. For example, troops in D.C. were ordered to pick up trash.

Politicizing the military: Some 83% of Americans want the military to remain apolitical, holding to tradition and founding principles. Separating the military from political influence guards against its misuse during domestic disturbances. Also, when service members take an oath to “protect the Constitution from foreign and domestic enemies,” they pledge to fight for country over party. This language about the Constitution punctuates the principle of a free republic built on democratic principles and elected officials. In other words, the military is meant to protect the ideals upon which the country was founded, breaking from the system of ruler and subjects.

Inappropriate method of deportation: The federalization of state troops to work the jobs of ICE agents is problematic for some of the reasons listed above, including larger costs due to necessary travel, housing, and daily expenses, as well as lack of training in ICE-related duties.

Fatalities and injuries: So far, one guard member was killed and another seriously injured while patrolling Washington, D.C., a district over which the president has full-time control over the local National Guard. Given the low impact combined with losses and cost, the risk versus benefit ratio deserves calculation.

Ambiguous laws

The federalization of state troops for domestic affairs proves controversial, in part due to the ambiguity of its applicable laws. Courts have interpreted the laws on a case-by-case basis, but Congress has yet to reform them. Most presidents have accepted the traditional safeguards of the Posse Comitatus Act of 1878, which says federal troops cannot be involved in domestic affairs.

The Trump administration has applied the laws more broadly, both invoking the Insurrection Act against “domestic terrorists,” and claiming executive authority under Article II of the Constitution. The lack of definitions for terms, including “rebellion” and “insurrection,” contribute to the array of interpretations of the law. The question of whether the executive branch has “plenary” or limitless power without checks from the legislative and judicial branches strikes at the core of this issue.

Proposed bills and discussions about reforming the laws show an ever-increasing effort to prevent the negative consequences of deploying troops domestically for reasons other than emergencies.

Suggested reforms

Legal institutions propose fixes to tighten the laws in question, safeguarding the laws from executive overreach. The Brennan Center for Justice, Protect Democracy, and The New York City Bar Association are among the organizations calling for reform with specific solutions. 

One popular suggestion is to give activating authority of the Washington, D.C., National Guard to the mayor of the District of Columbia, who acts as a state governor. This action aligns with other states and territories and preserves the separate rights of the district, protecting it from federal interference.

Another point of concern comes from the practice of the president federalizing troops from one state and imposing them on another state. For example, President Trump has deployed Texas National Guard troops to the state of Illinois without expressed need. Adding a provision for states to lend their troops only if accepted by the receiving state or territory (except in cases of rebellion or insurrection) would close this gap in the current laws. Also proposed is a provision requiring Congressional approval of a state-to-state transfer of troops.

The Posse Comitatus Act and the Insurrection Act were established long before the nation and its military grew to what they are today. Most calling for reform agree that the antiquated and sometimes confusing language in these laws requires updating and clarification. A bill introduced by Representative Adam Schiff in 2020 intended to strengthen Posse Comitatus, but the bill failed to pass the Senate.

Other notable ideas for reform include prohibiting privately funded deployments of the National Guard and Reserves troops and imposing time limits on the use of the Insurrection Act.

Consider this

In his frequently quoted 2003 address, “War and Peace,” President Gordon B. Hinckley said, “I hope that the Lord’s people may be at peace one with another during times of trouble, regardless of what loyalties they may have to different governments or parties.” Rejecting the politicization of the military is a step toward peace within the United States — and it begins with prioritizing peace with one another.

This piece was written by Sherilyn Stevenson, lead researcher and writer for Mormon Women for Ethical Government.