The Biden administration is being pressured by two Democratic senators to release a policy directive that would temporarily restrict President-elect Donald Trump’s authority to send American military forces home after he assumes office.
In a letter dated Nov. 26, Armed Services Committee Senators Elizabeth Warren, D-Mass., and Richard Blumenthal, D-Conn., urged President Joe Biden and Defense Secretary Lloyd Austin to issue a policy directive that would guarantee that U.S. troops can only be used when local or state authorities request federal assistance or are unable or unwilling to protect the public.
They wrote, “We write to urge you to issue a policy directive that makes it illegal to federalize National Guard personnel or mobilize active duty military personnel to be deployed against their fellow Americans unless specifically authorized.”
The Biden directive might be overturned by Trump’s own policy directive once he assumes office on January 20. It appears that Warren and Blumenthal, whose offices stated that the letter speaks for itself, believe that drawing attention to the matter publicly will dissuade Trump.
Trump contemplated utilizing the Insurrection Act to quell the Black Lives Matter demonstrations during his first administration. And following his loss in the 2020 election, several of his supporters pushed him to think about declaring martial law.
Trump has more recently indicated that he will assist in the deportation of foreign nationals without permanent legal status by using the U.S. military. Additionally, he has stated that he will relocate American troops from abroad and place them along the southern border. Additionally, Trump has stated time and time again that forces should be used to target the enemy from within.
Before the election, he stated in an interview with Fox News that “I think the bigger problem are the people from within.” There are some really awful people here. We have radical left lunatics and some ill folks. And they can’t allow that to happen, so I believe they are the ones who should be able to manage it with ease, either by the National Guard or the military if necessary.
The Posse Comitatus Act of 1878 forbids the president from deploying the military for domestic law enforcement unless specifically permitted by the Constitution or a congressional act.
An exemption is made by a different law known as the Insurrection Act, which was a combination of several legislation that Congress passed between 1792 and 1871. It gives the president the authority to send in troops in the event of a rebellion, insurrection, or severe civil unrest.
Before Biden leaves office, Warren and Blumenthal wrote to the Biden administration to request that they release a policy directive requiring state or local leaders to seek help prior to the deployment of federal military forces.
We strongly recommend that you issue a policy directive that explicitly states that the Insurrection Act’s narrow application should be restricted to situations in which State or local authorities are overburdened, the state chief executive writes to request assistance, or attacks against the U.S. government overwhelm State or local authorities.
Civil rights organizations have cautioned that if Trump is elected president again, he may abuse the military. “The Insurrection Act essentially creates a loophole in the Posse Comitatus Act and gives the president virtually unlimited discretion and power to use the military as a police force,” cautioned Joseph Nunn, a counsel at the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.
Despite concerns that Trump might misuse his power if re-elected, Nunn wrote last year that “there’s little anyone could do to stop him unless Congress acts now to reform this dangerous and antiquated law.”
Additionally, Warren and Blumenthal requested that the White House make sure that any future administrations will consult Congress before using the military to execute domestic law.
Lastly, they urged you to make it clear that the President must transmit the legal powers to the Federal Register and, to the greatest extent possible, confer with Congress before using this authority.
They cautioned that the necessity for a clear policy became even more pressing after the Supreme Court’s recent ruling that extended presidential immunity for official activities.
It is reasonable to presume that service members, other DoD professionals, and the larger military community may not be aware of or completely grasp their rights and obligations given the scholarly disagreement regarding the significant ramifications of the recent Supreme Court ruling. Blumenthal and Warren wrote.
When combined with President-elect Trump’s proven intention to use the military in such risky and unprecedented ways, they continued, “any ambiguity on the lawful use of military force may prove to be devastating if left unaddressed.”
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