Sending Federal Troops to States Could Spark Legal Chaos

President Donald Trump likely would be within his legal rights to invoke the Insurrection Act of 1807 to send U.S. military troops into states to quell riots and looting, experts say, but he could run into unprecedented legal and practical obstacles if governors opposed the action.

Several governors immediately came out against sending federal troops to their states to quell violence and looting in the wake of the death of George Floyd in the custody of Minneapolis police. Trump said Monday that 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.”

“To actually do it, governmentally and legally, would make a bad situation worse,” said New York Gov. Andrew Cuomo, a Democrat.

Massachusetts Gov. Charlie Baker, a Republican, called Trump’s earlier comments about getting tougher on the protesters an example of “bitterness, combativeness and self-interest. That’s not what we need in Boston, it’s not what we need right now in Massachusetts and it’s definitely not what we need across this great country of ours either.”

Legal experts said a clash between the president and a governor could be taken to the courts, but that it also was unlikely the court would take up the question, which could throw the nation into military-fueled chaos.

“This act was not intended to empower the president to militarize and federalize the police forces around the country, especially when states stand ready to enforce the law,” said Boston College law professor Kent Greenfield. “It’s not that states are unwilling or unable to enforce the law, it’s just that they are not doing it the way he wants, that’s not what the act is for.

“I do think the Insurrection Act would be limited in some ways by state sovereignty,” Greenfield added. “I don’t think courts would step in. My guess is that this is one of those situations courts would consider a political question and would not think that they should be the ones enforcing the contours of a state-federal understanding.”

The act has been invoked infrequently in recent times, and only at the request of a state’s governor.  President George H.W. Bush sent troops to Los Angeles in 1992 during riots stemming from the acquittal of police officers in the brutal beating of Rodney King, for example. The scope of the act was expanded after Hurricane Katrina in 2005, to include responses to natural disasters, public health emergencies and terrorist attacks, notably over the objections of all 50 state governors at the time.

The most prominent use of the act without a state’s permission dates from the civil rights movement. In 1957 President Dwight Eisenhower, a Republican, sent troops of the 101st Airborne to enforce the integration of the Little Rock Nine to a high school in Arkansas. In that case, legal experts said, the state was unable to assure protection of its residents, forcing the president to rely on troops.

Citing that case, George Mason University law professor Ilya Somin said that as far as he is aware, there has never been a court decision or legal precedent on a dispute between a state and a president over mobilizing federal troops.

The legal clash could come between an 1878 law, the Posse Comitatus Act, that bans the use of the military for domestic law enforcement, and the Insurrection Act, which is “seen as an exception to that” law, Somin said in a phone interview.

“It seems to me that this is an issue much more likely to be decided politically than in court,” he said, adding that while Trump seems to have decided that it is politically advantageous to talk about sending in the military, he may not find it politically advantageous to actually do so.

“The problem is what tactics you use,” Somin said. “You want to suppress riots; on the other hand you don’t want a massacre and large bloodshed.”