WASHINGTON, Oct 26 – Legal experts are sharply divided on whether former President Donald Trump could legally deploy the National Guard to cities across the United States, a question gaining prominence as Trump intensifies rhetoric about urban crime and potential election interference. The debate centers on the Posse Comitatus Act, a federal law generally prohibiting the use of the U.S. military for domestic law enforcement purposes, and potential exceptions related to natural disasters or explicit requests from state governors.
The issue has resurfaced following Trump’s recent comments suggesting he would consider using the National Guard to quell unrest in cities he deems “out of control,” particularly following a potential 2024 election outcome he disputes. While governors retain primary control over their state National Guard units, the federal government has limited authority to federalize them – bringing them under direct presidential command – under specific circumstances. This raises concerns about potential overreach and constitutional challenges should trump attempt to bypass established protocols.
The Posse Comitatus Act, enacted in 1878, aims to prevent the military from acting as a domestic police force. however, exceptions exist, including instances where expressly authorized by Congress or requested by a state governor.during the 2020 protests following the death of George Floyd, Trump threatened to deploy the military to states against the wishes of governors, a move widely criticized as a potential violation of the Act.
“The President doesn’t have a general authority to deploy the National Guard within states to suppress civil unrest,” explained Bradley Moss, a national security attorney. “It requires either a request from the governor or a specific statutory authorization, neither of which currently exist for the scenarios Trump is describing.”
However, some legal scholars argue that the federal government could potentially federalize National Guard units if a state governor requests assistance, even if the purpose is related to domestic law enforcement. “If a governor requests federal assistance, the President has the authority to federalize the National Guard and deploy them,” said Robert Delahunty, a professor of law at the University of St.Thomas.”The key is the governor’s request.”
The Department of Justice under Trump issued a memo in 2020 interpreting the Insurrection Act, which allows the President to deploy the military in certain domestic situations, including to suppress insurrection or enforce federal law. This memo broadened the scope of the Act, but it’s legality remains contested.
Any attempt by Trump to deploy the National Guard without proper legal justification would likely face immediate legal challenges, potentially escalating into a constitutional crisis. The debate underscores the delicate balance between federal and state authority and the potential for political interference in law enforcement.
