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1807 Insurrection Act And Emergency Powers: Can President Send Troops To Cities?


Last night in the Rose Garden at the White House, President Trump drew a line in the sand.


PRESIDENT DONALD TRUMP: If a city or a 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.

MARTIN: Those remarks came roughly at the same time the National Guard and Park Police were spraying tear gas and setting off flash-bang explosions to clear peaceful protesters from Lafayette Square, across from the White House. But the simple question many people have been asking is, can he do that? How far do the president's powers go to deploy the military, particularly when a governor or state does not want him to? To try to answer that, we've called Elizabeth Goitein. She co-directs the Brennan Center for Justice's Liberty & National Security Program.

Thank you so much for joining us and welcome.

ELIZABETH GOITEIN: Thanks very much. My pleasure.

MARTIN: You actually wrote about this issue months ago, mainly because of the president's threats to use certain authorities that he may or may not have. But in the current moment - in his actions last night on federal park land in particular - there's been a lot of speculation about the - that the president would use something called the 1807 Insurrection Act. So briefly, if you would tell us - what does that allow the president to do?

GOITEIN: Sure. So under that law, which dates back to 1807, as you mentioned, the president can deploy the military to suppress any insurrection, domestic violence, unlawful combination or conspiracy. Those are the words of the statute. If that, you know, conspiracy or violence impairs the execution of state or federal law, he can do this with or without the consent or the request of the state's governor. And he can deploy either active-duty armed forces, or he can federalize the National Guard.

It's really an extraordinarily broad power - far too broad, I would argue. And I certainly hope that when all this is behind us, Congress takes this moment as a wake-up call in terms of how much discretion it has delegated to the president to use troops domestically.

MARTIN: Are there other times when this has been used?

GOITEIN: Yes. It's been used throughout our nation's history but increasingly rarely. And the last time it was used was back in 1992 when Governor Pete Wilson of California requested federal assistance, federal troops to help suppress some of the rioting in Los Angeles in the aftermath of the Rodney King beating and acquittal of those police officers. So it has been quite a long time.

It is used very rarely, you know, in this day and age for a couple of reasons. First, using soldiers to police the streets of America just doesn't sit well with most of us. It smacks of authoritarianism. It feels un-American. And so there's a lot of political pressure not to invoke to the act, even though the law itself is very permissive.

And then second, it's a very risky thing to do. Introducing armed forces into a situation of civil unrest can actually increase the potential for violence. I mean, the police are at least nominally tasked with protecting the communities they serve. The military is trained to take down the enemy. It's a fundamentally different mission. So...

MARTIN: And very briefly, if you would - forgive me for...


MARTIN: ...Pushing you along here - is there a chance of this slipping into something like martial law?

GOITEIN: Martial law is something different. Martial law is when the federal - when the military actually supplants civilian authorities rather than supporting them. That's when they're sort of at cross-purposes and the military is taking over. There is actually no statutory authority right now that would enable the president to declare martial law. And so if he were to do so, I would say that that would be illegal and unlawful.

MARTIN: That is the Brennan Center's Elizabeth Goitein.

Ms. Goitein, thank you so much for speaking to us today about these very important issues.

GOITEIN: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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