President Donald Trump's warning he would deploy the United States military to any state that refuses to take aggressive action against rioting rests on a longstanding presidential power that gives wide latitude to the White House, legal experts said Monday.
But a decision to do so would be met with likely legal opposition, and strong opposition from governors seeing it as an overreaction.
"If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them," Trump said during a Rose Garden address as cities across the country grappled with property destruction, looting and violent police clashes in the week since the death of George Floyd in Minneapolis.
Legal experts say the president does indeed have the authority under the Insurrection Act of 1807 to dispatch the military in states that are unable to put down an insurrection or are defying federal law.
In the last half-century, presidents have sent the military to Southern states to ensure desegregation of schools there in the 1950s and 1960s, and to Los Angeles after the California governor sought federal help during the 1992 riots.
Even so, the president's comments set up an immediate conflict with officials in some states, who disputed the president had unilateral authority to send in troops against their will.
"The president of the United States is not a dictator, and President Trump does not and will not dominate New York state," New York Attorney General Letitia James said in a statement Monday, adding the state was prepared to go to court if need be.
The American Civil Liberties Union said it would be unnecessary to invoke the Insurrection Act, and also irresponsible and dangerous.
"No level-headed governor is asking for an even more militarized response to civilian protests against police brutality and systemic racism — for good reason," ACLU National Security Project Director Hina Shamsi said.
Under the law, Trump would first have to proclaim the insurgents disperse and retire peaceably within a certain amount of time. He could activate federal troops during an emergency without a governor's request as long as specific conditions are met, such as if the violence is interfering with the execution of laws in that state.
Stephen Vladeck, a national security and constitutional law expert at the University of Texas at Austin, said on Twitter the federal government does not necessarily need a state request before using troops for domestic law enforcement, and the Insurrection Act is open-ended in letting the president decide when circumstances merited its use.
He said the Insurrection Act had not been used since 1992, partly because of the unpopularity of using troops for domestic purposes.
"And it's hard to imagine courts second-guessing factual determinations by the president that circumstances warrant use of the military to restore order," Vladeck wrote. "Instead, the real constraint today might be responsibility; if Trump invokes these statutes, he'd own all that follows."
Not all experts are certain that the circumstances merit it.
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