In a statement issued yesterday evening, June 1, the President gave a briefing on the riots and looting that have hijacked the peaceful protests about the tragic murder of George Floyd. For those who value liberty, the Constitution, and a limited federal government, the startling part of the speech was:
“First, we are ending the riots and lawlessness that has spread throughout our country. We will end it now. Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets. Mayors and governors must establish an overwhelming law enforcement presence until the violence has been quelled.
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.” (Emphasis added.)
I wanted to explore what the Constitution and law say about deploying the U.S. military onto the streets of cities in the states and offer some comments about some of the flame wars breaking out in this group over the President’s statement. This is a VERY complicated issue with lots of cross-currents and history. There is no way I am going to be able to address all issues related to this in this piece. But let’s try.
Let’s start with the most applicable part of the U.S. Constitution, Article IV, Section 4, which states:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Note it is the state legislature or governor that has to request involvement in the state for domestic violence. The feds are not allowed under the Constitution to go into a state for domestic violence without invitation by the state.
Another applicable section is the powers delegated to Congress in Art. I, Section 8: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."
Note this is a Congressional authorization to call out the Militia, not the standing military. The framers made a BIG deal about that distinction.
People have said that the President is invoking the Insurrection Act when he makes his statement. The current version of the Act has three main parts, two of which have only been in existence since 2006, post-Katrina, having been modified again in 2008.
The original part of the Insurrection Act closely followed the Constitution:
"10 U.S.C. 251 Federal aid for State governments Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection."
No problem there that I can see. And note the reliance of "the militia of other States," not the military. (Of course, the normal solution is for the governor to call up his own militia.)
But then we get to the new section of the law, which I dub the Lincolnian provision of the Insurrection Act. By describing it as Lincolnian, I mean it is wholly without constitutional authority and was essentially made up by the federal government to bring the states that created the federal government under the control of the state’s creation, the federal government. Note that it authorizes the standing army in addition to the militia! Here it is:
“10 U.S.C. 252 Use of militia and armed forces to enforce federal authority 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.”
And finally, we have what I would call the attempted use of the Fourteenth Amendment to justify federal intervention. It also authorizes the use of the standing army in addition to militia of other states:
“10 U.S.C. 253 Interference with State and Federal Law (Added post Katrina in 2006, modified again in 2008) The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.”
The application of the Fourteenth Amendment is WAY too complicated to address in this piece.
Another fact which puts a sad light on this whole affair. It is related to this picture of George Washington leading the militia into Pennsylvania during the Whiskey Rebellion. I learned by reading the excellent Founding Father’s Guide to the Constitution by Brion McClanahan that neither the Pennsylvania legislature nor Governor Thomas Mifflin, a hero of the American War for Independence and signer of the Constitution, asked Washington or the feds to help in that rebellion. Washington did it anyway, and in doing so, by any objective analysis, violated the Constitution.
As McClanahan said, “Washington established a precedent that allowed Abraham Lincoln to send the army into the Southern States in 1861 without” their request.
Such is the sad state of federalism and respect for the Constitution in this issue.
I created a group called Texas Constitutional Enforcement that was founded to persuade Texas elected officials to honor their oaths, exercise independent judgment about constitutional meaning, and to stop the feds when they violate the Constitution in Texas. We also promote a healthy sense of sovereignty and independence on the part of Texas elected officials.
We hope when it comes to domestic violence, our leaders will think that we Texans can handle that on our own. This is the state, after all, that coined the term, “One riot, one Ranger.”
So far, the actions Governor Abbott have taken on this topic are, as usual mixed. On May 31, he has declared a state of disaster for “counties in the midst of violent protests that endanger public safety and threaten property loss and damage.” The Governor’s website says: “Under this declaration, the Governor has the ability to designate federal agents to serve as Texas Peace Officers.” So, he has invited federal agents, anyway, to assist Texas with the riots and the aftermath.
But, in response to President Trump’s statement, Governor Abbott held a press conference, today, he said in part: “Texas is up to this task, because Texans can overcome any challenge. We will seize this moment to bridge the divides that exist in our state so that we can keep Texas the greatest state in America."
The statement he issued went on to say, “To end the violence, vandalism, and looting experienced across the state, the Governor has deployed DPS officers and Texas National Guardsmen to several cities in Texas—including 1,000 DPS officers and hundreds of Guardsmen to the Dallas-Fort Worth region. They are working alongside federal partners from the Federal Bureau of Investigation (FBI) to stop the violence and protect those protesting peacefully. The Governor also noted that the state is working with four United States Attorneys in Texas to ensure that individuals coming from across state lines to hijack peaceful protests with violence will be subject to federal prosecution.”
I have seen this being reported as a way of the Governor telling the President that troops are not needed in Texas. I suspect that this is right, and that President Trump will see it that way.
Now, let me say a few things about some controversies playing out in the media and on social media. First, I agree with the Declaration of Independence. The purpose of government is to secure these rights – the rights to life, liberty, the pursuit of happiness (and the right to property and its protection).
Citizens have the right to assemble and speak and petition their government for redress of grievances. Just as I opposed the lockdowns for violations of those rights, I (and everybody I have heard speak on this topic) oppose any attempt to squelch such protests by government when a policeman murders a citizen. I will say that personally, I have not seen any level of government seek to repress peaceful protest so far.
I have seen what appears to be paid, organized efforts by agitators to hijack the legitimate, peaceful protests going on around the state to turn them violent. There are three separate and distinct activities: 1) legitimate peaceful protest via assembly and speech and petition for redress of government; 2) rioting that includes the assault on persons and property; and 3) looting, which of course is just callous exploitation of chaos to steal the property of others.
Does anyone really need to have instruction on the stark difference between peaceful protest and the other two? Governments were instituted to protect peaceful protest and to stop and punish rioting and looting. The rule of law and the Constitution protects number one and calls for a strong response against 2 and 3.
I am angry, and I think every person peacefully protesting the murder of Floyd should be angry, about the hijacking of that legitimate activity by violent assaults, destruction of property, and theft. I especially want the financiers, the masterminds, and the agents provocateur who instigated the attacks on the people of Texas and the icons of Texas, including the Alamo and our State Capitol brought to justice.
Texans of good will on the left and right have something to unite about - anger at the murder of Floyd and anger at the sinister forces that have tried to hijack peaceful protests about that to achieve their own tyrannical and divisive ends.
I want to watch HOW that is done, to make sure that this does not set us up for more centralized federal tyranny in the future. We should work to stop the deployment of active duty military into Texas. As stated above, I think it likely that this will not be done in Texas. I will let other states worry about that should it happen to them.
Given that I think it likely that the agitators who launched the assaults in Texas were indeed “not from around here,” I am not too shaken up by the use of the FBI and the U.S. Attorney’s office to pursue those perpetrators, although I will gladly take any admonishment for that stance from my friends. I much prefer that Texans run Texas and handle this ourselves.