In recent days, the increasingly desperate Donald Trump has referred to using the military to come after the entire spectrum of Kamala Harris supporters, who he refers to as “the enemy within,” and use the military to help deport millions of immigrants.
“We have some very bad people," said Trump. "We have some sick people, radical left lunatics. And it should be very easily handled, if necessary, by the National Guard, or if really necessary, by the military, because they can’t let that happen.”
Is calling out the military something Trump can legally do? The Posse Comitatus Act of 1878 generally prevents American Troops from using their power to resolve domestic affairs within the boundaries of the United States. It was instituted the year after the removal of federal troops who’d protected the recently freed slaves in the South. Their removal effectively ended Reconstruction and ushered in Jim Crow.
I’ve seen descriptions of Posse Comitatus as having been enacted to curtail the abuses of federal troops on the Black population. That sounds good, but it’s totally false. It was passed to allow white Southerners to take back everything they lost during the war. They removed, by force or the next election via voter suppression, all the Black elected officials who had been seated during Reconstruction. Power abhors a vacuum, and what stepped in when the troops left was the Ku Klux Klan. I’m not saying the federal forces weren’t committing heinous offenses, including rape. I’m saying they were by far the lesser of two evils.
The original Act only applied to the US Army but has since been expanded to include the Navy, Air Force, Marines, and Space Force, omitting only the National Guard.
Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment. — Posse Comitatus Act
In theory, Trump could only employ the military if authorized by an act of Congress. However, Posse Comitatus doesn’t cover the National Guard, and Congress doesn’t need to approve the federalization of state National Guard Units. Several states, including Florida and Texas, have private armies under the control of their governors. I can easily picture Ron DeSantis or Greg Abbott lending Trump their troops to achieve a political objective.
Six times in US History, the military was used to quell riots without obtaining Congressional approval. The Marines joined Los Angeles police officers and National Guard units to quell the riots after the Rodney King verdict, and over 13,000 troops occupied the Capitol after Martin Luther King’s assassination. The Insurrection Act of 1807 has been cited by Trump and his supporters many times as a way to sidestep Posse Comitatus and give a president unilateral power to unleash the military if so desired. The Supreme Court now says presidents are immune from prosecution for official acts, which means there is no foreseeable penalty to a President Trump for loosing the dogs of war.
So the answer is that Trump as President could do whatever he liked unless the military decided on its own that these acts were illegal and refused to obey the Commander in Chief. Of course, Trump could fire military leaders until he found someone to carry out his commands. General MacArthur found out the hard way that President Truman had the higher authority. If Trump tries to carry out his plan to use the military against US citizens, only impeachment stands in his way, and that could only come after the fact. He might even use the military to detain House members attempting to bring impeachment or Senators trying to conduct a trial. To paraphrase John Kennedy, “Ask not whether Trump will have the power, but whether or not he’ll be coming for you?”
This post originally appeared on Medium and is edited and republished with author's permission. Read more of William Spivey's work on Medium. And if you dig his words, buy the man a coffee.