Chris Mirasola (Climenko Fellow and Lecturer on Law, Harvard Law School) has posted Sovereignty, Article II, and the Military during Domestic Unrest (15 Harv. Nat'l Sec. J. (forthcoming 2024)) (65 pages) on SSRN. Here is the abstract:
In this article I contest two theories of inherent presidential power, rooted in Article II, to use the military to respond to domestic unrest during peacetime. This question is more contested than one might imagine. Based on all available evidence, in June 2020 President Trump relied on a doctrine of inherent Article II authority to deploy thousands of National Guard personnel to the streets of Washington, DC in response to Black Lives Matter protests. On January 6, 2021, the Commanding General of the DC National Guard more explicitly contemplated using a second, different doctrine of inherent authority to deploy his soldiers to retake the Capitol Building. This article mines archival War Department legal opinions and previously unavailable Department of Justice Office of Legal Counsel memoranda obtained under the Freedom of Information Act to reconstruct and critique the legal arguments underpinning these two doctrines of inherent authority.
This critique brings together two bodies of scholarship: (1) whether and how executive powers may be imputed from federal sovereignty and (2) methodologies for using historical practice to define ambiguous constitutional text. I reconstruct how the executive has justified these two doctrines by relying on historical assertions of power implied from federal sovereignty and based in necessity. My reconstruction shows how the executive disregards and mischaracterizes congressional responses to these assertions. And it demonstrates how the executive incompletely addresses Supreme Court precedent concerning inherent executive authority. I then draw on these observations to argue that an essential and underemphasized precondition for using historical practice as a means of constitutional interpretation is establishing the notoriety of executive branch practice and associated legal rationales. Finally, I consider what might be done to rein in this type of overreach, which rarely (if ever) is subject to judicial scrutiny.
My view is that the President obviously has constitutional power, absent a statutory limitation, to use the military to enforce domestic law as part of the Article II law execution power and commander in chief power. Indeed, the President has the obligation to do so, if necessary to assure the laws are enforced, pursuant to the duty imposed by the take care clause. (I wouldn't call it "inherent" power because I don't like the extra-textual implication of that word — it's just an ordinary constitutional power.) But, as the article notes, the 1876 Posse Comitatus Act, 13 U.S.C. § 1385, bars use of the Army “as a posse comitatus or otherwise to execute the laws” except where “expressly authorized by the Constitution or Act of Congress.” I don't know what Congress had in mind as "expressly authorized by the Constitution" but I assume it wasn't the general law execution power, else the Act would be meaningless. (Perhaps the express authorization is the guarantee clause of Article IV, Section 4 — so the President would have authority to use the army to assure a republican form of government in the states and to protect against domestic violence on request by a state.) But generally I agree with the article that invoking "inherent" power to get around the Posse Comitatus Act is dubious, because an implied constitutional authorization, even if it exists, isn't express. (This is all assuming the Posse Comitatus Act is constitutional, which I think it likely is, as part of Congress' power to make rules for the "Government and Regulation of the land and naval Forces.")
Aside: Congress has made some broad authorizations to the President to use the military domestically to suppress insurrection, as Matthew Waxman and I discuss in our forthcoming article on war powers delegations. We think these delegations are constitutional, regardless of what one thinks of delegating the decision to initiate war, because they are in an area where the President has independent constitutional power.
(Via Larry Solum at Legal Theory Blog, who does not say "Highly recommended", but I think it's an important paper anyway.)
Posted at 6:15 AM