This morning, Secretary of Defense Mike Esper expressed his opposition to deploying active-duty troops to respond to protests around the country. He also ordered 200 active-duty soldiers from the 82nd Airborne’s immediate response force to leave Washington, D.C. and return to their home base. However, Esper later reversed this decision after a meeting at the White House.
Esper argued that “the option to use active-duty forces in a law enforcement role should only be used as a matter of last resort and only in the most urgent and dire situations.” He did not provide criteria for determining whether these conditions are satisfied, but did say “we are not in one of those situations right now.” “I do not support invoking the Insurrection Act,” Esper added.
In my view, use of active-duty troops is warranted when (1) a city is suffering from riots and (2) the existing police force plus whatever other forces state and local officials are willing/able to deploy are inadequate to stop the rioting. If the second of these conditions is satisfied, then, by definition, the U.S. military becomes the last resort. If the first condition is satisfied, the situation is sufficiently urgent and dire.
What is the president supposed to do? Wait until a city is ablaze or scores of innocent people are being killed?
I believe the two conditions set forth above are satisfied in cities like Washington, D.C. and New York. In D.C. over the weekend, the police force was heavily deployed to protect the White House. This left rioters free to roam nearby neighborhoods, setting fires and looting.
Similarly, in New York, the police force was unable to keep up with rioters. On television, I saw virtually no police presence on Madison Avenue in midtown, among other areas where rioters ran rampant.
Was anyone killed in D.C. or New York during the riots? Not that I know of. But the damage to property has been immense. Many lives will be ruined as a consequence.
Moreover, death and serious injury have resulted from riots in other cities the past few days. As I said, we can’t know in advance whether lives will be lost in riots.
Therefore, I agree with Sen. Tom Cotton, who argues in the New York Times for “send[ing] in the troops.” Says Cotton:
The[] rioters, if not subdued, not only will destroy the livelihoods of law-abiding citizens but will also take more innocent lives. Many poor communities that still bear scars from past upheavals will be set back still further.
One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what’s necessary to uphold the rule of law.
In such cases, the president has the authority to send in troops under the Insurrection Act:
This venerable law, nearly as old as our republic itself, doesn’t amount to “martial law” or the end of democracy, as some excitable critics, ignorant of both the law and our history, have comically suggested. In fact, the federal government has a constitutional duty to the states to “protect each of them from domestic violence.”
Throughout our history, presidents have exercised this authority on dozens of occasions to protect law-abiding citizens from disorder. Nor does it violate the Posse Comitatus Act, which constrains the military’s role in law enforcement but expressly excepts statutes such as the Insurrection Act.
As examples of this use of presidential authority, Cotton cites President Eisenhower’s use of troops in Arkansas when schools were integrated in the 1950s. In addition, and more closely analogous, he points to President Bush (41) deploying the Army’s Seventh Infantry and 1,500 Marines to protect Los Angeles during race riots in 1992.
Grant Starrett, writing in the Wall Street Journal, provides additional cases. He notes, for example, that President Cleveland sent federal forces to Chicago to enforce an injunction against the labor leader and socialist politician Eugene Debs during a nationwide railroad strike. The Supreme Court upheld the action, stating “if the emergency arises, the army of the nation, and all its militia, are at the service of the nation to compel obedience to its laws.”
Starrett reminds us that the Constitution was adopted in part to ensure that the federal government was capable of combating the challenges posed by mobs, e.g., during Shays’s Rebellion in 1786:
Ensuring “domestic tranquility” was so important to the Framers that they included it in the preamble to the Constitution—ahead of the common defense, the general welfare and the “blessings of liberty.”
Accordingly, although “states can and should experiment with different policies that reflect the wishes of their residents. . .if violent disorder arises, the president must intervene to uphold the law and protect the republic,” where states and localities aren’t up to the task.
UPDATE: Some at the New York Times are calling for Sen. Cotton’s article in favor of sending in troops to be taken down. One moron claims that running Cotton’s piece “puts black NY Times staff in danger.”
Not if they don’t engage in looting, arson, shooting, or beatings.
This paper published Erdogan, Vladimir Putin, and the Taliban: no such outrage of public weeping from its so high and mighty staff.
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