An army in the streets

Troops as cops?

Americans who lived through the Revolutionary War had a deep aversion to the use of the army in civilian affairs. They remembered how the stationing of British troops in Massachusetts had led to the Boston massacre and the battles of Lexington and Concord.

The memories persisted in 1787 when delegates gathered in Philadelphia to write a new constitution. The charter they produced increased the powers of the central government and of the executive in particular. But it reserved to the legislature the authority to declare war, to raise and support armies, and “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.”

The delegates didn't expect the Congress to actually command the army. That power was granted to the president, who would be “commander in chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.”

The delegates expected domestic law to be almost exclusively the responsibility of the states. Yet it allowed an oversight role for the central government. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

As for federal law which applied to individuals, in the early days there was almost none. The first important exception was an excise tax approved by Congress in 1791. Its stated purpose was to provide revenues to pay off debt from the Revolutionary War. A secondary purpose, in the minds of advocates of greater centralization such as Alexander Hamilton, was to make federal power real in the lives of individuals.

The taxed items included whiskey, the production of which was a staple of the economies of the western parts of states like Pennsylvania, where bad roads and long distances prohibited the profitable export of commodities like grain to the markets of the East. Conversion of the grain into whiskey enormously increased its value per pound and made such export feasible.

The whiskey distillers of the region around Pittsburgh were no more pleased by the new tax on whiskey than American colonists had been pleased by the new tax on stamps in 1765. Their response was much the same. They refused to pay. And when federal tax men came to collect the tax, they were threatened and assaulted by the tax resisters.

Hamilton had been waiting for just such a response. He urged President George Washington to use military force to crush the whiskey rebellion. Washington wasn't as trigger-happy as Hamilton. At first he sent special envoys to talk to the whiskey rebels. But to lend weight to the government's side of the negotiations, he called on the governors of nearby states to send militia to Pennsylvania. Washington himself got out his old military uniform, saddled up his warhorse, and rode to rendezvous with the arriving militias.

By this time the president’s authority had been bolstered by the 1792 Militia Act. The measure allowed the president, on the request of a state legislature or governor, to summon militia from the several states to suppress an insurrection against the government of the requesting state. It also permitted the president, on his own authority, to mobilize militias to enforce federal law when federal marshals were unable to do so. The second permission applied to the whiskey rebellion.

Washington’s show of force persuaded the rebels to scatter. Washington was pleased at having avoided a pitched battle. Hamilton was disappointed

Soldiers in the service of the United States were employed to enforce the law on subsequent occasions. The Civil War was the most spectacular case, lasting four years and involving millions of troops. During the war, Union troops were dispatched to New York to suppress anti-conscription riots in 1863. During Reconstruction, Union soldiers embodied military rule in the former Confederate states. Ulysses Grant sent the army against the Ku Klux Klan in South Carolina in the early 1870s. Grover Cleveland dispatched federal troops against rioters during the Pullman railroad strike of 1894. Dwight Eisenhower sent troops to secure school desegregation in Little Rock, Arkansas. George H. W. Bush deployed federal troops during riots in Los Angeles after the 1992 beating of Rodney King.

The use of the army to enforce law during Reconstruction prompted Congress in 1878 to narrow the circumstances under which federal troops could be used. The Posse Comitatus Act declared, “It shall not be lawful to employ any part of the Army of the United States, as a posse comitatus” – a concept from English history with a label meaning “power of the county” and referring to citizens deputized to assist in law enforcement – “or otherwise 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.” The constitutional authorization came from the passage cited above. An act of Congress would be specific to a particular case.

The deployments of troops after passage of the act followed requests from the state governments for help in suppressing domestic violence, per the Constitution. The exception was Eisenhower’s dispatch of troops to Arkansas, over the objections of the state government. Eisenhower cited federal civil rights laws from the 1870s as triggering the “act of Congress” language of the Posse Comitatus Act.

President Trump has indicated his intention to use federal troops to assist in the enforcement of immigration law. He hasn’t specified the legal authority for his action, which would appear to violate the Posse Comitatus Act. He might cite his sworn duty to “preserve, protect and defend the Constitution.” He has frequently described illegal immigration and the other crimes he associates with it as an invasion. On his first day in office he declared a national emergency at the border with Mexico. “America’s sovereignty is under attack,” Trump’s declaration said. “This assault on the American people and the integrity of America’s sovereign borders represents a grave threat to our Nation.” Therefore: "It is necessary for the Armed Forces to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border.”

Trump might cite a series of insurrection laws dating to the 1790s and including the measure under which Lincoln waged the Civil War. Trump’s order characterized the situation on the southern border as “widespread chaos.” From chaos to insurrection might be a short interpretive step.

Or he might simply break new ground in presidential authority. He is doing so in other areas. In this area as in some of those, he’s likely to face lawsuits challenging his authority.

How such lawsuits will turn out is, at this point, anyone’s guess. As is how the president might respond to adverse rulings in them. And how — most crucially — the army would respond to presidential orders given in defiance of the Supreme Court.