President-elect Donald Trump is giving more and more hints that he is ready to use U.S. troops as part of his upcoming efforts to deport illegal immigrants.
Tom Fitton, president of the conservative group Judicial Watch, initially posted on Truth Social on Nov 8: “GOOD NEWS: Reports are incoming that @RealDonaldTrump administration prepared to declare a national emergency and will use military assets to reverse the Biden invasion through a mass deportation program.”
On Monday, Trump replied on his Truth Social account, “TRUE!!!”
Trump did not elaborate what type of “national emergency” he might declare, or if his plan to deport people who are in the United States illegally would involveNational Guard troops, who are often called on to enforce civilian laws, active-duty forces, or both.
The Trump-Vance transition team did not respond to requests for comment by Task & Purpose on Monday.
Experts told Task & Purpose that putting troops in the role of law enforcement would likely require specific legal steps that have been used on rare occasions in the past. Whatever type of national emergency Trump may declare once he takes office, the law that Trump is likely to cite to use service members in such a way is the Insurrection Act, said Kori Schake, head of the defense policy team at the American Enterprise Institute think tank in Washington, D.C.
“The Insurrection Act gives the president wide and almost unrestricted latitude for the domestic use of the United States military for law enforcement purposes,” Schake told Task & Purpose on Monday.
Last invoked in 1992
Under the Posse Comitatus Act of 1878, a law passed after the Civil War, active-duty U.S. troops are not allowed to enforce civilian laws inside the United States. The act does not apply to National Guard troops when under state command and control.
But Trump could override Posse Comitatus by invoking the Insurrection Act. The act allows federal troops to be deployed under certain circumstances, such as in response to a natural disaster or terrorist attack. The law has been amended several times since it was passed in 1807.
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Presidents Dwight D. Eisenhower and John F. Kennedy both invoked the Insurrection Act to deploy active-duty troops and federalize the National Guard as part of efforts to desegregate schools in Arkansas, Mississippi, and Alabama.
The law was last invoked by President George H.W. Bush in 1992 to federalize the National Guard and activate soldiers with the 7th Infantry Division and Marines from the 1st Marine Division to respond to riots in Los Angeles following the acquittal of four police officers accused of beating motorist Rodney King.
Trump wanted to invoke the Insurrection Act in 2020
Although there are examples in American history of presidents using the military to break strikes, there have been few precedents of the federal troops enforcing civilian laws since the military became an all-volunteer force, Schake said.
“One of the reasons that presidents don’t invoke the Insurrection Act and use the military domestically is that the American people tend really not to like it, and the American military tends to really not like doing it,” Schake said. “And so, there are downstream consequences for recruiting and retention of talent into the military.”
However, during his first term Trump raised the possibility of using active-duty troops to put down nationwide protests that erupted after the death of George Floyd at the hands of Minneapolis police.
Then-Defense Secretary Mark Esper incurred Trump’s wrath by publicly saying in June 2020 that he did not feel active-duty troops needed to help the National Guard and federal and local law enforcement restore order.
“I say this not only as secretary of defense but also as a former soldier and a former member of the National Guard: 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 of situations,” Esper said at a Pentagon news conference. “We are not in one of those situations now. I do not support invoking the Insurrection Act.”
Trump fired Esper shortly after the 2020 election. Later, retired Army Lt. Gen. Michael Flynn suggested that Trump could use U.S. troops to “re-run” the election in swing states.
Troops don’t get to pick which orders they follow
Schake noted that although Trump was prevented from using the law in 2020 by Esper’s public comments, it is unlikely that any of Trump’s cabinet members in his second term would oppose him invoking the Insurrection Act.
Schake said. Many Americans will likely be shocked to learn that U.S. troops must carry out their orders, even if they disagree with them, she said.
“There is a common misperception that the American military should refuse immoral or unethical orders, and there’s actually no option for that in the American civil-military relationship,” Schake said. “You have a responsibility to refuse illegal orders, but if you don’t like a president’s policy, you can either salute and carry it out or you should resign your commission. There’s not wide latitude for disapproval of legal policy.”
If Trump does use troops for mass deportations and detaining illegal immigrants in camps, the damage to civil-military relations could be considerable, said Risa Brooks, a political science professor at Marquette University in Wisconsin.
Many Americans will see the U.S. military as not just following orders but willingly backing the detention plan, Brooks told Task & Purpose.
“This will inevitably damage trust and confidence in the military by large swaths of the population,” Brooks said. “Being put in the midst of controversy could also damage morale among some servicemembers who didn’t sign up to play a role in such missions and could even result in breakdowns in good order and discipline. Beyond all of this, the U.S. military is busy dealing with external adversaries and conflicts around the world and has a lot on its plate already.”
Legal challenges likely
The Trump administration would face “a massive amount of litigation” if the next president invokes the Insurrection Act to use the military to help deport illegal immigrants, said Butch Bracknell, a retired Marine lieutenant colonel and former NATO attorney.
Congress has not defined what constitutes an insurrection, and an 1827 Supreme Court case establishes that the president can decide when to invoke the Insurrection Act, but Trump could still be challenged in court for doing so, Bracknell, told Task & Purpose.
“Even this is almost exclusively committed to the president’s discretion, it still has to pass the straight face test that an insurrection is a rising up against civil authority,” Bracknell said. “That’s not what we have here. What we have here is a routine administrative legal issue. It’s just large in scope.”
American history has examples of insurrections, such as the Civil War, but immigration has always been a law enforcement problem, Bracknell said.
Although Eisenhower and Kennedy used the Insurrection Act in situations that one wouldn’t normally think of as an insurrection, Trump opponents could argue that using the law to round up and deport illegal immigrants would be a violation of civil rights, he said.
“There will be some test cases as soon as they actually start doing enforcement,” Bracknell said. “They’re going to be tied up in litigation over this stuff for years.”