We Need Law and Order, but Not Necessarily Federal Troops

In the Rose Garden yesterday evening, President Trump threatened to deploy the U.S. military to restore order in the American cities if mayors and governors fail to do it.

In his brief speech, Trump said the appropriate things about the George Floyd case (he called it a “brutal death”) and about the legal process underway in Minneapolis (“justice will be served”). He was also right about the biggest victims of disorder being people living in poor communities, about the mix of Antifa and looters causing the mayhem, and the need to act vigorously to stop it.

The president pretty clearly has the authority to send in the military under the Insurrection Act. It is widely believed that the Posse Comitatus Act prohibits the use of federal troops for domestic law enforcement, but this isn’t true — it prohibits such use only when there isn’t statutory authorization. If the president makes the determination that “unlawful obstructions, combinations, or assemblages” are making it impossible to enforce the laws in a state, he can act.

Invoking this law would not constitute imposing a dictatorship or waging a war on the American people any more than when George H. W. Bush did it during the Los Angeles riots in 1992, when Lyndon Johnson did it during riots in 1968, or when Dwight Eisenhower did it to enforce federal desegregation law in 1957. There is no justice and no liberty without order and the rule of law.

That said, it’s hard to see how Trump could, as a practical matter, invoke the Insurrection Act over the objections of state and local officials. Having hostile and competing authorities trying to police the same out-of-control streets is not a formula for success. The main utility of talking of the Insurrection Act may be in prodding states to be more forceful in their response.