Can the Military Be Used As Law Enforcement

In times of unrest, national emergency, or even enemy attack, can the United States military be used for law enforcement purposes on domestic soil? National Guard troops have been deployed for a variety of purposes across many crisis moments including the terror attacks of 9/11, Hurricane Katrina, and even to the U.S. border with Mexico to supplement the U.S. Customs and Border Protection activities there.

But what are the limits of using U.S. troops deployed on American soil? And do U.S. troops have the right to participate in acts of protest, with or without the added problems of political unrest?

Basic Questions Answered

• Can the President deploy active duty troops to serve on U.S. soil at any time? Active duty troops can only be deployed if the situation meets certain criteria including times of domestic violence (as in, violence on U.S. soil rather than the kind of violence between two people in a living situation), insurrection, natural disaster, epidemic, etc.
• Can the President federalize National Guard troops to use on American soil? Restrictions apply, but not as many as are applicable to U.S. forces on active duty.
• Can military members be held accountable or punished for taking part in protests? Troops cannot be in uniform when attending protests, may not be public speakers at such protests, etc. The bottom line is that if there is any chance that the service member appears to endorse a movement, political party, platform, etc. on behalf of the U.S. government, that activity could be actionable in the form of discipline or other measures.

Defining Terms

Any discussion of the use of military members on American soil must clearly identify terms to avoid confusion over subtleties in the law. Even at the most basic discussion level, the categorization of “troops” must be clearly defined. Why?

What Are “Troops”?

There is a difference in classification, use, and legality of deploying the military at home. For example, a state governor can mobilize National Guard troops to support local law enforcement in times of civil strife. But the governor cannot order active duty military members to do the same thing; that power is outside the scope of a governor’s jurisdiction.

So “troops” in this context must be identified properly. The National Guard and active duty military members are both “troops”, but the Guard can be mobilized by the governor, and the state budget is usually responsible for funding such activation.

The Guard may also be mobilized by the President of the United States. In such cases, the funding and oversight for Guard missions (as directed by the President) comes at the federal level rather than the state level.

Federal Authority To Mobilize The National Guard

Federal authority over servicemembers falls under Title 10 of the U.S. Code. These laws apply to active duty, reservists, and Guard members who are ordered to federal-level active duty for federal-level missions. Funding comes from the federal government. The president is the boss.

Federal authority over National Guard members falls under Title 32 of the U.S. Code. This is considered federal active duty for specific state missions and full-time Guard positions. This type of state-level activation is guided by state laws and policies, but it is funded by the federal government after approval from the president.

This typically happens with large-scale, state-related missions: major natural disasters, for example. The governor is the boss even though the state mission is sanctioned and funded by the federal government.

Can The President Order Active Duty Military To Be Used On American Soil?

The short answer is a limited “yes”. The President does have the authority to call up Active Duty military members and deploy them on American soil IF certain conditions apply.

Two very old laws restrict the President’s ability to order active duty military members to operate domestically; the Insurrection Act of 1807 and the Posse Comitatus Act of 1878. In general these two federal laws work together to restrict how active duty military forces can be deployed on American soil.

Posse Comitatus

The Latin phrase itself means, “force of the country” and refers to a local sheriff authorizing a group of people to help enforce the law, maintain order, etc. In the context of the law, posse comitatus prohibits the use of active duty troops for such purposes.

However, there are exceptions and a modification of federal law in 2006 expanded the President’s ability to use active duty deployments (see below).

The Insurrection Act

The Insurrection Act was designed to limit the President’s power to use active duty troops deployed on American soil, with the exception of use in the following situations:

• Insurrection
• Domestic violence
• “Unlawful combination”
• Conspiracy

In 2006, the Insurrection Act was amended to approve the use of U.S. forces at home under the following circumstances:

• Natural disaster
• Epidemic
• “Other serious public health emergency, terrorist attack or incident, or other condition”

Some sources report that due to pushback from state governors, portions of the amended Insurrection Act were repealed, but it’s important to note the language in the surviving portion of the act which includes the following from Section 252 of the Insurrection Act:

“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

Federal troops have been activated under the Insurrection Act; in 1992 troops were sent to Los Angeles during the L.A. riots. Authority for doing so is very limited, and some legal scholars debate whether the active duty troops serving during the coronavirus pandemic could be lawfully ordered to serve at home.

In any case, the unrest that followed on the heels of the coronavirus lockdown in the form of protests, looting, fire starting, and other acts could qualify as legal justification for sending in federal troops from the active duty component of the Armed Forces.

Generally speaking, using active duty troops in America does not involve law enforcement roles UNLESS these troops are activated under the Insurrection Act. Other ways U.S. troops can be used for domestic law enforcement include situations dealing with weapons of mass destruction, nuclear materials, counter drug operations, and counter-terrorism.

Choosing The Right Response

In the same way that state governors have to choose whether the time is right to activate the National Guard to help in a crisis, the President of the United States also has to make a decision when faced with a crisis involving the possible need to invoke the Insurrection Act.

Not all situations are appropriate for doing so, and some may wonder why a sitting president would choose NOT to invoke the Insurrection act in situations where there is active looting, burning, and widespread unrest.

Some of the reasons why more extreme measures aren’t used? It’s one thing to tell the American public that forces of violent protest will be met with “vicious dogs and ominous weapons,” but it’s another thing entirely for the average citizen to see military hardware, weapons, tanks, and troops on the streets of their home towns.

The specter of martial law coupled with anxiety over the very need to consider bringing in heavily armed and trained military professionals to quell an unstable situation creates feelings of panic.

That panic is something most experienced military commanders are eager to avoid; fear creates more chaos. The strategic needs of a volatile situation can include using subtlety and strategy to combat the problem. Swatting at a fly with a baseball bat is an inappropriate response and military advisors to the Commander-In-Chief who understand the subtleties of dealing with these circumstances are often careful to select the most precise and appropriate response.

Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News