He had set himself up as a "wartime president" to fight the Covid-19. The decor has changed, but the tone remains the same: Donald Trump said on Monday June 1 that he was ready to deploy the army on American territory to "dominate" the streets, while the protests against police violence have multiplied throughout the country.
The threat to send the soldiers to quell the anger that has rumbled since the death of George Floyd, an African-American who was asphyxiated during a police checkup Monday May 25, has caused a great stir in the American media. New York Magazine sees this as a sign of a president giving in to his authoritarian temptations, while CNN presenter Don Lemon wondered if Donald Trump was really ready to "declare war on American citizens".
A law over 100 years old
But beyond the political scope of such a gesture, recourse to the army is a legally dubious option. In theory, the president cannot dispatch military personnel for operations to maintain order on American soil. It is a mission that falls under the authority of the governors of each state. They can thus appeal to the National Guard, reservists of the American army present in each state. While they are usually mobilized during natural disasters, they can also intervene when civil movements overflow.
The president has no say except invoking the Insurrection Act, a law dating back to 1807 that allows the chief executive to mobilize the military on American soil in exceptional circumstances.
He can thus intervene at the request of a governor who would feel overwhelmed by the events. This is what happened in 1992, the last time the Insurrection Act was used. During the racial riots in Los Angeles, triggered by the acquittal of the police accused of having beaten Rodney King, the governor of California requested and obtained from President George Bush the deployment of the army to restore calm.
It's hard to imagine, however, that the Minnesota Governor, Democrat Tim Waltz, is appealing to Donald Trump to help him control the spillovers during the protests in Minneapolis. Illustrating the reluctance of local authorities to work hand in hand with Donald Trump, New York Attorney General Letitia James said that "the President of the United States [was] not a dictator, and he [ would] not "dominate" New York ".
President Trump is not a dictator & he doesn't have the right to unilaterally deploy US military across American states.
We will guard the right to peaceful protest & will not hesitate to go to court to protect our constitutional rights during this time & well into the future.
From Dwight Eisenhower to Donald Trump
But Donald Trump can also decide on his own to send soldiers to confront the supposed "thugs" and "antifas" militants. To do this, the United States Commander-in-Chief must act to protect "critical infrastructure" or a federal building, such as a power plant, recalls a 2006 Congress report on the use of Insurrection Act. The military can also be mobilized to ensure that federal legislation is enforced, when state authorities are unwilling or unable to do so.
It is this latter provision that has given rise to the most significant applications of the Insurrection Act in recent American history. It allowed Presidents Dwight Eisenhower in 1957 and John F. Kennedy in 1962 and 1963 to enforce anti-segregation laws in Arkansas and Mississippi. The soldiers were then deployed to ensure that African-American students could go safely to their school, when local governors wanted to oppose it.
An exceptional measure, used in the past to protect the civil rights of African-Americans, brought up to date to put at the feet of the demonstrators who denounce systemic racism in the American police? Several American jurists suggest that Donald Trump has the right to do so. The Insurrection Act specifies, in effect, that the President of the United States can call upon the army if "a part of the population is deprived of protection, or of a right guaranteed by the Constitution or by a federal law ". In other words: it would be enough for the tenant of the White House to ensure that the local authorities fail to guarantee, for example, the right to private property in the face of rampage to call the soldiers to the rescue, CNN underlines.
A responsible president if things go wrong
Such a reading of the law would be unprecedented, but Donald Trump has "demonstrated in the past that he does not feel bound by precedents," notes the Los Angeles Times. And even if this interpretation of the Insurrection Act is legally questionable, "it is hard to imagine that the courts feel empowered to judge the validity of a President's assessment of a situation" said Steve Vladeck, a national security expert at the University of Austin, Texas, on Twitter.
In reality, the main obstacle to the presidential recourse to the army is political. Certainly, such a show of force could please the electoral base of Donald Trump. But "if there is recourse, he should take full responsibility for how the situation will evolve," said Steve Vladeck.
First, before being able to send the soldiers on the spot, the president must give the demonstrators a deadline, of which he freely fixes the duration, to disperse. Such an ultimatum "will probably be interpreted by part of the population as an act of authoritarianism" intended to deprive the people of their right to demonstrate freely, notes the Vox site.
Then, if the confrontation between the army and the demonstrators degenerates, Donald Trump will have trouble assuring that he has nothing to do with it. It may well be a master in the art of finding scapegoats - China or the World Health Organization for the coronavirus pandemic and the governors or the "antifas" for current social tensions -, the decision to mobilize the military is the act of one man: the President of the United States. Less than six months away from the next presidential election, is the one who aspires to succeed himself ready to take such a risk?
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