The New York Times reports:

During the turbulent summer of 2020, President Donald J. Trump raged at his military and legal advisers, calling them “losers” for objecting to his idea of using federal troops to suppress outbreaks of violence during the nationwide protests over the police murder of George Floyd.

It wasn’t the only time Mr. Trump was talked out of using the military for domestic law enforcement — a practice that would carry profound implications for civil liberties and for the traditional constraints on federal power. He repeatedly raised the idea of using troops to secure border states, and even proposed shooting both violent protesters and undocumented migrants in the legs, former aides have said.

In his first term in office, Mr. Trump never realized his expansive vision of using troops to enforce the law on U.S. soil. But as he has sought a return to power, he has made clear that he intends to use the military for a range of domestic law enforcement purposes, including patrolling the border, suppressing protests that he deems to have turned into riots and even fighting crime in big cities run by Democrats.

“In places where there is a true breakdown of the rule of law, such as the most dangerous neighborhoods in Chicago, the next president should use every power at his disposal to restore order — and, if necessary, that includes sending in the National Guard or the troops,” Mr. Trump said at a conservative conference in Dallas in August 2022, shortly before announcing that he was running to be that next president.

During his time out of power, allies of Mr. Trump have worked on policy papers to provide legal justifications for the former president’s intent to use the military to enforce the law domestically. In public, they have talked about this in the context of border states and undocumented immigrants. But an internal email from a group closely aligned with Mr. Trump, obtained by The Times, shows that, privately, the group was also exploring using troops to “stop riots” by protesters.

While governors have latitude to use their states’ National Guards to respond to civil disorder or major disasters, a post-Civil War law called the Posse Comitatus Act generally makes it a crime to use regular federal troops for domestic policing purposes.

However, an 1807 law called the Insurrection Act creates an exception to that ban. It grants presidents the emergency power to use federal troops on domestic soil to restore law and order when they believe a situation warrants it. Those federal troops could either be regular active-duty military or state National Guard soldiers the federal government has assumed control over.

The Insurrection Act was last invoked in 1992, when President George H.W. Bush sent troops to help suppress riots in Los Angeles following the acquittal of white police officers who had been videotaped beating a Black motorist, Rodney King. In that case, however, the governor of California, Pete Wilson, and the mayor of Los Angeles, Tom Bradley, had asked for federal assistance to restore order.

But parts of the Insurrection Act also allow presidents to send in troops without requiring the consent of a governor. Presidents last invoked the act to deploy troops without the consent of state authorities in the late 1950s and early 1960s during the civil rights movement, when some governors in the South resisted court-ordered school desegregation.

Mr. Trump has boasted that, if he returns to the White House, he will dispatch forces without any request for intervention by local authorities. At a campaign rally in Iowa last year, for example, he vowed to unilaterally use federal forces to “get crime out of our cities,” specifically naming New York, Chicago, Los Angeles and San Francisco as “crime dens” he pointedly noted were run by Democrats. [Continue reading…]