Trump hints at expanded role for the military within the US. A legacy law gives him few guardrails

WASHINGTON — During his campaign in Iowa this year, Donald Trump said he was prevented from using the military to quell violence in mostly Democratic cities and states during his presidency.

The front-runner for the 2024 Republican presidential nominee called New York City and Chicago “crime dens” and told his audience: “Next time I won’t wait. One of the things I did was let them run the business and we’re going to show how bad they’re doing,” he said. “Well, we did. We don’t have to wait any longer.”

Trump has not spelled out exactly how he might deploy the military during a second term, though he and his advisers have suggested they would have wide latitude to call up units. While regularly deploying the military within the country’s borders would be a departure from tradition, the former president has already signaled an aggressive agenda if he wins, from mass deportations to travel bans on certain Muslim-majority countries.

A law first drafted in the nation’s infancy would give Trump as commander in chief virtually unlimited power to do so, military and legal experts said in a series of interviews.

The Insurrection Act allows presidents to call on reserve or active military units to respond to unrest in the states, an authority that is not subject to court review. One of the few guardrails only requires the president to request that participants disperse.

“The main limitation on presidential use of the Insurrection Act is essentially political, that presidents don’t want to be the guy who rolled tanks down Main Street,” said Joseph Nunn, a national security expert at the Brennan Center for Justice. “There is not much in the law that can stop the hand of the president.”

A spokesperson for Trump’s campaign did not respond to multiple requests for comment about the authority Trump might use to pursue his plans.

Congress passed the law in 1792, just four years after the Constitution was ratified. Nunn said it is an amalgamation of several laws passed between then and the 1870s, a time when there was little to do in the way of local law enforcement.

“It is a law that in many ways was made for a country that no longer exists,” he said.

It is also one of the most substantial exceptions to the Posse Comitatus Act, which generally prohibits the use of the military for law enforcement purposes.

Trump has spoken openly about his plans if he becomes president, including deploying the military to the border and in cities struggling with violent crime. His plans also include deploying the military against foreign drug cartels, a position echoed by other Republican primary candidates such as Florida Gov. Ron DeSantis and Nikki Haley, the former U.N. ambassador and governor of South Carolina.

The threats have raised questions about the meaning of military oaths, presidential power and who Trump might appoint to support his approach.

Trump has already suggested he could bring back retired Army Lt. Gen. Michael Flynn, who briefly served as Trump’s national security adviser and twice pleaded guilty to lying to the FBI during its investigation into Russian influence before being pardoned by Trump. Flynn suggested in the wake of the 2020 election that Trump could seize voting machines and order the military in some states to help repeat the election.

Efforts to invoke the Insurrection Act and use the military for domestic policing would likely draw resistance at the Pentagon, where Gen. Charles Q. Brown is the new chairman of the Joint Chiefs of Staff. He was one of eight members of the Joint Chiefs who signed a memo to military personnel in the aftermath of the Jan. 6, 2021, attack on the U.S. Capitol. The memo highlighted the oaths they took and mentioned the events of that day, aimed at stopping the certification of Democrat Joe Biden’s victory over Trump, “sedition and insurrection.”

Trump and his party nevertheless maintain broad support among those who have served in the military. AP VoteCast, an in-depth survey of more than 94,000 voters nationwide, found that 59% of U.S. military veterans voted for Trump in the 2020 presidential election. During the 2022 midterm elections, 57% of military veterans supported Republican candidates.

Presidents have issued a total of 40 proclamations invoking the law, some made multiple times over the same crisis, Nunn said. Lyndon Johnson invoked it three times—in Baltimore, Chicago, and Washington—in response to urban unrest following Dr. Martin Luther King Jr. in 1968.

During the civil rights era, Presidents Johnson, John F. Kennedy and Dwight Eisenhower used the law to protect activists and students who desegregated schools. Eisenhower sent the 101st Airborne to Little Rock, Arkansas, to protect black students integrating Central High School after that state’s governor activated the National Guard to keep the students out.

George HW Bush was the last president to use the Insurrection Act, a response to riots in Los Angeles in 1992 following the acquittal of white police officers who beat black motorist Rodney King in a videotaped incident.

Repeated attempts to invoke this act during a new Trump presidency could put pressure on military leaders, who could face consequences for their actions, even if they were done at the president’s direction.

Michael O’Hanlon, director of foreign policy research at the Brookings Institution think tank, said the question is whether the military is being imaginative enough with the scenarios it has presented to prospective officers. Ambiguity, especially when violence is involved, is not something military personnel are comfortable with, he said.

“There are a lot of institutional checks and balances in our country that are quite well developed legally, and it’s going to make it difficult for a president to just do something arbitrary out of the blue,” said O’Hanlon, who specializes in U.S. defense strategy and the use of military force. “But Trump is good at developing a semi-logical line of thought that could lead to a place where there is enough chaos, violence and legal ambiguity” to call in the military.

Democratic Rep. Pat Ryan of New York, the first graduate of the U.S. Military Academy who represents the congressional district that includes West Point, said he took the oath three times while at the school and several more times during his military career. He said the class focuses extensively on an officer’s responsibilities to the Constitution and the people under his or her command.

“They really hammer home the seriousness of the oath and who it was and wasn’t aimed at,” he said.

Ryan said he thought it was universally understood, but January 6 “was very disturbing and a wake-up call for me.” Several veterans and active duty military personnel were charged with crimes in connection with the attack.

While these connections were troubling, he said he thinks those who harbor similar sentiments make up a very small percentage of the military.

William Banks, a law professor at Syracuse University and an expert on national security law, said a military officer is not forced to follow “unlawful orders.” costs for taking unlawful actions.

“But there is a big thumb on the scale in favor of the president’s interpretation of whether the order is legal,” Banks said. “You would get into a really big fight and you would get a lot of fuss within the military if you chose not to follow a presidential order.”

Nunn, who has proposed steps to limit the law’s invocation, said military personnel cannot be ordered to break the law.

“Members of the military are legally obligated to disobey an unlawful order. At the same time, this is a lot to ask of the army, because they are also obliged to follow orders,” he said. “And the penalty for disobeying an order that turns out to be lawful is that your career is over and you may spend a very long time in jail. The stakes for them are extremely high.”


Associated Press writers Jill Colvin and Michelle L. Price in New York, and Linley Sanders in Washington contributed to this report.