Just a general observation: I don't necessarily see all or even most of troll replies. It's probably a good thing because I don't mind a good argument (I think it comes from my mom's side of the family) and I don't suffer fools gladly. Most of the ones I've seen are more personal attacks, not principled. The reason I mention this is because I had tweeted something to the effect that law and order were primarily a state, not federal responsibility. So some smug troll responded to me, saying Eisenhower had deployed the National Guard to enforce school desegregation. Well, I'll do that point even better: JFK did the same 3 more times.
First, let me note the difference between Title 10 (federal-controlled) and Title 32 (state/federal) service in the National Guard. (Actually there are 3 ways for the National Guard to be deployed: "state active duty" called by the governor for a specified mission (paid by the state), Title 10 and Title 32 (federal-paid). Generally speaking, deployment of the National Guard in the state, primarily in response to national disasters, is under the control of the state's governor; in current circumstances that included supplementing police in emergency situations like large-scale urban unrest. However, federalized National Guard (Title 10) do not necessarily fall under state control or coordinate with local forces. Title 32 basically includes a Duty Status Commander serving under a state National Guard (reporting to the governor) which commands/coordinates state and federal forces).
As I've pointed out in tweets, the US Constitution Article 4 Section 4 basically defers to local/state control; the state legislature or governor can apply for federal intervention if and when they cannot adequately respond to local emergencies with their own resources, including state National Guard. Basically much of this is implemented through the Insurrection Act of 1807 and the Posse Comitatus Act, which have been amended for various purposes.
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.
So in the case of SCOTUS' Brown desegregation decision, pro-segregation governors were reluctant to enforce the ruling. The Constitution outlaws government-sanctioned discrimination policy. So Eisenhower federalized the National Guard.
10 U.S. Code § 253: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it
1)so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
Let's step back and look at the general context for emergency application of the military:
Actions that are taken under the inherent right of the U.S. Government, a sovereign national entity under the U.S. Constitution, to ensure the preservation of public order and to carry out governmental operations within its territorial limits, or otherwise in accordance with applicable law, by force, if necessary. This authority is reserved for unusual circumstances, and will be used only under DoD Directive 3025.12 (reference (l)), which permits use of this power in two circumstances: The emergency authority authorizes prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disaster, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situation.Notice the reference in 10 U.S. Code § 253 to POTUS using the "militia or the armed forces". The Posse Comitatus Act, implemented in the aftermath of unpopular federal military occupation of the South following the Civil War, generally scaled back military involvement in domestic law enforcement. The default is not to do so without a request for assistance from the state. However, "the National Guard can, and frequently does, perform [law enforcement] duties in its legal status as a state military force under command of the governor, not the President"..
Now civil disorders (not recognizing the established law or authority) can be broadly categorized into two categories: peaceful (civil disobedience/resistance) and violent (from indulgent looting or vandalism, random attacks on individuals to a conspiracy to reform policy or even overthrow the established authority).
The Whiskey Rebellion, an uprising against the first federal tax on American produced goods (the federal government mostly depended on tariffs/import duties for revenue), was an early prototype of federal intervention. Hamilton's liquor tax was widely despised by small Western distillers as regressive, and Washington faced noncompliance; various revenue collectors became targets of the rebels. I'm not going to go into the details of the violent rebellion (see here for a discussion of the Battle of Bower Hill and the March on Pittsburgh); I'm more interested here in Washington's response to the insurrection:
Before troops could be raised, the Militia Act of 1792 required a justice of the United States Supreme Court to certify that law enforcement was beyond the control of local authorities. On August 4, 1794, Justice James Wilson delivered his opinion that western Pennsylvania was in a state of rebellion. On August 7, Washington issued a presidential proclamation announcing, with "the deepest regret", that the militia would be called out to suppress the rebellion. He commanded insurgents in western Pennsylvania to disperse by September 1.Let's quote Section 2 of the Militia Act:
That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
Washington and the governor of Pennsylvania had disagreements over the handling of the rebellion. The point is that Washington recognized under the Constitution and enacted law, he did not have the Constitutional or legal authority on his own to federalize the militia, without Pennsylvania's governor or legislature applying for federal assistance in suppressing the insurrection. So even if the local militia under the governor's control refused and/or were insufficient to handle the rebellion, Washington was empowered to raise a multiple-state militia if necessary, which he did (I do believe it included Pennsylvanian militia members). The Militia Act was a precursor to the Insurrection Act of 1807.
So the contemporary context is that Trump was highly critical of certain state governors in not quiescing riots and looting in the aftermath of George Floyd's murder and suggested if they wouldn't do anything to his satisfaction, he would. Trump simply doesn't have that unilateral authority. If you look at federal intervention in augmenting the suppression of riots under the Insurrection Act, nearly all of them were under state request: 1 under FDR, 3 under LBJ, and 1 under G.H.W. Bush. I see a disagreement over sources regarding the 1962 Ole Miss riot, but reportedly segregationist Gov. Barnett cooperated for the sake of restoring civil order.
Interestingly, Bush 43 wanted to federalize the National Guard in Louisiana and Mississippi in the aftermath of Katrina, but the governors refused, realizing they would lose use of resources needed to reinforce police powers against looting, for instance.
Could Trump do it anyway, driving a tank through the nebulous specification of "domestic violence"? Probably not. It would be an unprecedented intervention in domestic matters and create logistics problems coordinating local/state and federal forces. Looting and rioting are generally state/local crimes, not federal ones. Arrest powers would be outside the federal scope other than issues involving the federal context (property, personnel and/or laws). The state government is accountable for maintaining civil order and deployment of its own forces, including the National Guard/militia.
What about Sen. Cotton's June 3 opinion, which now comes with an editorial prologue and has resulted in a prominent resignation at the Gray Lady?
Cotton is trying to link various crimes in New York, Las Vegas, and St. Louis, basically indicting state/local leadership as getting in the way of local law enforcement, trying to implicate the leftist Antifa, like Trump who wants to get the organization declared a terrorist group (obviously in reference to recent patches to the Insurrection Act). First of all, there were some links to groups on both the left and right (boogaloo), but only a minor percentage of local arrests (e.g., <=10%); the overwhelming majority of arrests have involved opportunistic local gangs/criminal elements. There is no evidence that the loosely organized leftist or rightist groups have conspired in the civil unrest.
Cotton is basically arguing that obstructionist governors are refusing to restore civil order and arguing only the federal government has the scale and leadership to resolve civil disorder. Now maybe it's because I've been delayed in responding to the Cotton editorial, but it looks like the craziness peaked in late May/early June, because my Internet searches show most recent references involve charging criminal suspects. The protests seem to have run their course, without the need for the large-scale "show of force" federal intervention Cotton was asking for. I'm more concerned about the chilling effect of federal intervention in the rights of Americans to protest. The incidents of looting and rioting, while they did occur, were incidental to the vast majority of those involved in the protests themselves.
Still, there are some things to keep in mind in analyzing Cotton's opinions:
- Like other nationalist "conservatives", Cotton blurs the line between federal and state responsibility, a betrayal of our principles of federalism. There is no federal police force by design.
- Cotton is trying to normalize the concept of federal intervention. In fact, most of the incidents he discussed are literally decades old. Many of them involved scenarios where state leadership rejected, e.g., court-ordered school desegregation and hence fell under federal enforcement. In discussing the LA riots, he doesn't point out the GOP governor requested Bush's assistance. No, Cotton's argument is for unilateral federal interventionism, overriding the wishes of the state governor or legislature. We see no recognition of submitting the question of federal intervention, say, to the courts to making a determination of whether state leadership is refusing to address civil disorder in invoking the Insurrection Act.
