Lawfare Daily: The Dangers of Deploying the Military on U.S. Soil

[Intro]

Chris Mirasola: There is another deployment in 502(f) status after January 6th, in which many thousands of National Guard were deployed to the Capitol. And again, it's important to recognize that these folks remain in their state status. So when you have 20,000 National Guard at the Capitol, those are National Guard who are not responsible to the president. They're responsible to their state governors.

Scott R. Anderson: It's the Lawfare Podcast. I'm Senior Editor Scott R. Anderson. For today's special episode, I sat down with the contributors to a special series on the dangers of deploying the military on U.S. soil we recently published on our website, which examines the growth in domestic deployment to the U.S. military and what it may mean for U.S. national security moving forward.

Lindsay P. Cohn: The American public is certainly less averse to the idea of deploying the military domestically than the military is, but they would still probably rather see a more local and more law enforcement response, if possible.

Scott R. Anderson: Over the past several weeks, Lawfare has collaborated with our friends at Protect Democracy to publish a special series of articles on an important topic: the increasingly common practice of deploying the U.S. military domestically, on missions ranging from national disaster relief to supporting law enforcement. Both presidents and governors have pursued domestic deployments more often and for an increasingly diverse range of activities in recent years, pursuant to a complex set of legal authorities.

But the practice could have underappreciated consequences for other important interests, including U.S. national security. For this episode of the Lawfare Podcast, I sat down with the contributors to the special series to discuss some of their key findings and analysis. Before I did so, however, I was joined by Alex Tausanovitch, the policy advocate at Protect Democracy, who has played the lead role in organizing the series, about why he and his colleagues think this topic is important and how they chose to structure the series the way they did.

[Prologue]

So this question of domestic deployments, the domestic use of the military is something that has been on the public mind, to some extent, really for decades, for much of American history in a way, but particularly more front of mind in the last few years. And in particular sense, the experiences that many had in 2020 in Washington, D.C., around the deployment of the National Guard there, then later again in regards to January 6th, and also discussions about the potential use of the military, National Guard, in regards to, as responses, to protests around Black Lives Matters and other issues in different corners of the world.

We've seen, previously seen it discussed in the context of border deployments and assisting with border security, particularly in relation to immigration in a somewhat controversial way. We saw soldiers deployed in ways during the pandemic than which they'd kind of never been used before. Now we're seeing them deployed in the context of hurricane relief in various corners of the country, particularly among National Guard units. So why is it Protect Democracy thinks this conversation about how we're using the military domestically, how we can and how we should, is particularly important conversation to have at this particular historical moment.

Alex Tausanovitch: Well, I think what people need to understand in general is that deploying the military in the United States, on U.S. soil, it's a pretty serious thing, and it should be done with care and with caution. And the reason that we're talking about it now is that there has been a lot of conversation about using the military more routinely and for more nontraditional roles.

So, for example, former President Trump has talked a lot about using the military to break up protests, enforce immigration laws, and police major U.S. cities. And we've even seen governors of both parties using the military for more and more nontraditional roles. And the reason why we're concerned about this is that the military has a pretty important job to do. They are supposed to protect the United States from our external adversaries, and their primary training is in overseas combat. And so we don't want to distract them from that job, if we can avoid it.

We really need to make sure that we're making wise choices about how we use the military. Which is not to say that we should never use the military United States; there are some traditional roles, which makes sense to have some support from the military and disaster relief is one of those traditional roles, but we need to be careful that we don't start using the military as a one-size-fits-all solution for domestic problems.

Scott R. Anderson: So how has that perspective, this kind of set of concerns, informed how you all approach this series of essays that we've published in coordination with you?

What sort of questions did you want to address through this series? What kind of issues did you want to bring to the fore? And how did you frame it in a way that was to try and inform what you hope will be the conversation around these issues moving forward.

Alex Tausanovitch: The overall question that we are trying to answer this, in the series is: what are the considerations that someone should take into account when they're trying to be thoughtful about how to use the military and when they think of the military as a limited resource?

So, there are a couple different sets of considerations, I think. The first set of considerations is legal: what are the actual guardrails? What do the laws say? How does the use of the military reflect our constitution and our separation of powers? And so, there are some broad authorities for the president to use the military in the United States, but there are also a number of restrictions that are there for very important reasons.

The second set of considerations are practical. As I said before, the military is trained for a specific role—they're a limited resource—and so we need to be careful both that we don't misuse that resource and that we also don't put the military in situations that they don't want to be in and that aren't good for the American people for them to be in.

Scott R. Anderson: So Protect Democracy, the organization you work for, frequent friends and partners of ours here at Lawfare for a variety of projects, you guys come at these issues from a unique perspective, a perspective of an advocacy organization focused on democracy, but also very consciously nonpartisan, and particularly with kind of a long view about what democracy means in a variety of sort of dimensions.

And you always think about these things, at least in my experience, and I'm sure this is no different in terms of impact, you know, how do we drive a conversation towards a particular outcome? Talk to us about this series in regards to those approaches. How does Protect Democracy see its role in regards to these issues? And who are you trying to reach with this essay series? Who are the most, the people that need to think about these considerations most seriously who will benefit the most from the sort of informed analysis that we've tried to bring together in this series?

Alex Tausanovitch: As you said, Scott, Protect Democracy is principally concerned with the long term health of our democracy and our institutions, and one of the issues that we've worked on a lot, is making sure that we don't have abuses of executive power.

So that's sort of our entry point to this issue, is that the Constitution provides for separation of powers. Congress and the president both have roles when it comes to uses of the military. And we need to make sure that those roles are accountable to the American people, and that there isn't excessive use of the military in ways that both threaten democracy and also undermine the military itself.

And so I think the main audience for that message is people who are in government and the military and working on our national security, who may be in a position to advise on or execute a domestic deployment. Those are the people who really need to understand all of these different reasons why we should have, exercise caution when we do that.

But of course, if we start seeing more routine uses of the military on American soil, that's going to be something that's going to impact all Americans. And so there's really, this is an issue that everybody should be aware of.

[Introduction, part 2]

Scott R. Anderson: My first set of conversations on domestic deployments focused on the complex constellation of legal authorities that shape how the president and others can and can't make use of the U.S. military within the United States. To get to the bottom of these tricky authorities questions, I was joined by Laura Dickinson, a professor at George Washington University Law School, Joseph Nunn, counsel in the Liberty and National Security Program at the Brennan Center, and Chris Mirasola, an assistant professor at the University of Houston Law Center.

[Main Podcast]

Lauren, let me start with you to set up what are really the foundational elements of this conversation. Because we are, of course, talking about the law around a pretty complex and contested concept, which is this idea of using the military domestically, domestic deployments. And this is an issue, a concept, a concern that was not foreign to the framers who authored the Constitution, which has the base parameter rules that of course this whole area of law is built on.

Talk to us about what the constitutional framework is for domestic deployments and what motivated that framework and what we think the framers intended with it.

Laura A. Dickinson: Thank you. Yes. I think it's important to understand that the U.S. constitutional framework, and frankly the domestic law framework more broadly, contemplates a quite limited role for the military domestically, outside of context when the U.S. is actually the theater of war.

So, in particular if the military is going to be used for domestic law enforcement-type functions. And this really grows out of our history, as you say, our reaction to the oppression of the British colonial forces. And I think it's captured, for example, in a U.S. Supreme Court case in which the court said, the fear of military intrusion into the civilian affairs has become part of our cultural and political institutions.

And what does that mean for the constitutional text and structure? Well, if we look at the Constitution, the president in Article II has some limited inherent power—in particular with respect to war through the commander-in-chief clause and related clauses. And the U.S. Supreme Court has interpreted the Constitution to give the president some very limited emergency powers, inherent emergency powers.

But mostly we see the Constitution giving power to Congress in Article I, to regulate the U.S. Armed Forces. as well as the militia, to fund the armed forces, to call forth the militia, and of course the power itself to declare war. Another important constitutional provision is Article IV Section 4, which states that the federal government must guarantee to every state, a republican form of and protects against invasion, and if requested protect, against domestic violence.

The other thing I would note is that the Bill of Rights applies and if the military were used domestically, those rights, protections would be operable.

Scott R. Anderson: So when we talk about this constitutional framework, a couple of terms jump out that can be a source of a little bit of confusion. And the one that really stands out is malicious. This is a concept that people don't think about in terms of the standing military in that terminology anymore. But it really is an essential aspect of this legal framework we're going to be discussing today.

Chris, let me come to you on this. I know you're, you cut your teeth in your legal career for a good part in the Department of Defense. Talk to us about what the current structure of the military is, and how it maps on to this constitutional framework, particularly around this concept of a standing army and the militias. How does that relate to the military we see today and that we're talking about being involved in potential domestic deployments?

Chris Mirasola: Fantastic, yeah. So right we can think of the military forces as existing in two buckets that, kind of, stem from some of the clauses that Laura was just talking about, right?

So on the one hand, we have the federal military, right? We're thinking about the Navy, the Marines, the Army, right, the Air Force. These are the folks who we might call active duty military personnel, right, who are under federal command and control, meaning that they ultimately are responsible to the president as commander-in-chief, right? This is the standing army that, again, Laura was just talking about, where we have this historical concern, right, about the size of this professional military force, right, under federal control, kind of within our constitutional history.

In the modern day, right, they're kind of, again, broadly speaking, two different subcategories you might think of within the federal military. Those folks who are on duty all the time, right, and then reservists, right? So again, these are federal military forces, but these are folks who have a daytime civilian job. They come on to federal duty for some more limited period of time. Great, so that's the federal military.

Then we have, as you say, the state militias, what we now call the state National Guards, state and territorial National Guards. We had a fun little name change in the beginning of the 1900s, but these state militias, National Guards, right, predate the federal military. They, in their, kind of, day-to-day status, these military folks are responsible to their state and territorial governors, right, not a federal command structure. And, so, that's kind of the first hat, right, that the state and territorial National Guards can operate in.

They can also be federalized, right? So they also exist as a reserve component for the federal military. So there are a number of statutory provisions that allow various executive branch officials to bring state and territorial National Guard folks into federal duty. So essentially you take someone who was in the state militia and make them a part of the regular federal army, right, responsible to a federal chain of command.

And I think we're going to spend a bit of time on this last bucket the most. A relatively recent innovation has been the creation of—I mean it goes by a whole bunch of different names, but I think most straightforward is just to, you know, name the provision of statutory law that it exists under, right—this is Section 502(f) of Title 32. And essentially it allows a National Guard member, who remains in their state status to perform a federal mission. This began as a training status back in the 1960s and evolved considerably in the 1980s to today.

And so most important to this last kind of category for the National Guard is the ability of the National Guard personnel, right, to do a federal mission but not exist within a federal chain of command and control, which has all different kinds of implications, which we can perhaps get to in a bit.

Scott R. Anderson: So, within this framework, we have these different components of the military. We have a constitutional framework that gives, kind of, the greatest degree of control, setting aside some of the residual authority the president has, commander-in-chief, but to Congress in the first place. And the contemporary structure of the military is a product of Congress.

And Congress has also, of course, imposed a notable statute that plays a central role in all of these conversations, really is kind of the touchstone in many ways, concern or conception when it comes to domestic deployments, and that is the Posse Comitatus Act, which codifies some of these vision about limiting the military's role in law enforcement affairs, but has a somewhat more complicated history than I think a lot of people understand.

Joseph, tell us about Posse Comitatus restrictions, where they come from, and how they fit into this picture that we're discussing today.

Joseph Nunn: Absolutely. So, I'll start at the top. You mentioned the Posse Comitatus Act has a complicated history, and it absolutely does. It was enacted in 1878, in conjunction with the, sort of, end of Reconstruction policies and the return of white supremacists to political power in both the former Confederacy and within Congress itself.

And it was enacted really to force an end to military Reconstruction and ensure that it could not be restarted. But, despite those ignominious origins, the Posse Comitatus Act does fit into this long tradition that Laura explained to us of, that's represented in the Constitution, of, sort of, suspicion of military interference in civilian affairs, and a desire to limit the military's power within the domestic sphere.

Now what the Posse Comitatus Act does, is that it bars federal military forces from participating in civilian law enforcement activities, except when doing so has been expressly authorized by Congress. So there are three important elements to that rule, first, the PCA only applies to the federal armed forces. Now Chris helpfully teed up what that means, but what that means is it applies to the Army, Air Force, Navy, Marines, Space Force, and to federalized National Guard personnel, but it does not apply to the National Guard when they are operated under state command and control, which they often are.

Now second, the PCA is only concerned with law enforcement, or to use the statute's own language, it is concerned with the use of the military to execute the law. Unfortunately, what is and is not law enforcement, can be fuzzier than it really should be. So, some activities, like making an arrest or executing a search warrant, are obviously law enforcement. Others, like a military helicopter crew conducting search and rescue operations after a hurricane, are obviously not law enforcement.

But still other activities, such as for example, military personnel operating surveillance drones in support of a civilian law enforcement operation, fall somewhere in between. In that scenario, military personnel, they're not directly interacting with a civilian. They're not sort of directly subjecting a civilian to military power, but if they're operating a surveillance aircraft that is, you know, identifies where a civilian suspect is and helps law enforcement apprehend that person, they're playing really an integral role in that law enforcement operation. So there's a gray area and within that gray zone, the principles for determining what constitutes law enforcement are less clear than they should be.

Now, the third important element: federal military forces may participate in law enforcement when doing so has been expressly authorized by Congress.

Laura A. Dickinson: You know, that was wonderfully comprehensive. I would just say, in terms of figuring out what is law enforcement and what is not, courts have used different approaches. But one framework is: is it regulatory or prescriptive?

Scott R. Anderson: Regulatory and prescriptive. These are concepts, ideas that I think courts and lawyers might have a sense of what's meant by that, but other listeners might not. What do they mean by that concept? Where do you see that, those words as drawing the line?

Laura A. Dickinson: Well, I think exactly in the examples that Joseph was giving, right? If the military is kind of in a supportive function, supportive to law enforcement, but not enforcing regulations or prescribing conduct, then they're not doing direct law enforcement. They're providing a supporting role, and so they wouldn't cross the line.

Joseph Nunn: And to just if I could quickly add on to that the courts have also, there are two other tests that the courts have come up with as well. The first is whether civilian authorities have made a direct active use of military personnel and law enforcement, and that is really capturing that first example, I gave you. If you have military personnel who are themselves making an arrest or executing a search warrant, that's what is contemplated by a direct act of use.

The third test is whether military involvement pervades a civilian law enforcement operation which, that one, like so much in this space, is a little bit nebulous. But it's essentially contemplating a situation where military involvement is so pervasive that the military is kind of exercising influence over the decision making of civilian law enforcement personnel, and of the, over the sort of course of this law enforcement operation, and maybe even, sort of, initiating it more so than civilian authorities.

Scott R. Anderson: So, the key exception to this Posse Comitatus restrictions, at least the statuary variety as Joseph has already flagged for us, is the Insurrection Act. Insurrection Act is a law a lot of Americans have heard of, a lot of listeners, certainly the Lawfare Podcast have almost certainly heard of. It's got a lot of public profile, but at the same time I don't think fewer people understand both where it comes from and what the actual contours of the law are.

Laura, your contribution to the written published series that this podcast conversation is capturing and discussing, really focused on the Insurrection Act and the way it should be understood. Walk us through that a little bit in your arguments: where does it come from? How should it be understood? And how does that feed into this conversation about the risks of domestic deployment, how the military can and can't be used domestically?

Laura A. Dickinson: Great. So this is a very old statute that was initially enacted in the 1700s. It's been modified at various times throughout our history, and most importantly after the Civil War, in that period that Joseph described. And the text of the statute is pretty broad. I mean, what it does, what it purports to do, and what it does, is to authorize the president to deploy the U.S. Armed Forces, to federalize the National Guard, or in one instance, to deputize private militias. And there are basically three triggers for the president to do this, in the statute.

The first is relatively narrow. It requires a request from the state, and it allows the president to deploy the military or federalize the guard in the case of an insurrection plus a request of the state. The second trigger, Section 252, gives the president a bit more discretion. So it doesn't require the request of state officials. And the president can invoke it when 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.

So this statutory text is a little bit broader than the first trigger because there's no request from the state required. The language, though, suggests that the president can rely on this provision only in extreme circumstances, such as a condition of war or a serious disruption of civilian affairs.

Now the third trigger is even broader, and this is part of the statute that was enacted during this Reconstruction period, and it was very important to address the violence of the KKK against Black Americans, but the language is extremely broad. The president can invoke it when the president deems it necessary to suppress in a state any insurrection, domestic violence, unlawful combination, or conspiracy, including to oppose or obstruct the execution of U.S. law. I'm not reading the entire provision, I'm just reading the broadest aspect of the language.

Now again, this was really important to address the violence of the KKK, but on its face, the text could seem to be extremely broad, and to potentially encompass, in theory, relatively minor obstructions such as small protests interfering with law enforcement activities or judicial proceedings.

The other thing that's very broad about this provision, is that it allows the president to deputize private militia. This is not the National Guard, here. This is private actors, potentially even, you know, the Proud Boys or paramilitaries. Now, that being said, in my piece in Lawfare, I argue that despite this very broad text, the statute should be and has been read quite narrowly during our nation's history. First of all, it's been rarely used at all, and particularly these broad provisions have been rarely used.

Joseph and Elizabeth Goitein, through their leadership at the Brennan Center, have done a really wonderful study documenting all the instances of the use of the act, and they identify only 30 crises in which the act has been used over our nation's history. Some important examples include efforts to desegregate the schools to enforce court orders over the objections of state officials during the civil rights era and to protect marchers. But it's been very, very rarely used.

And one of the things I do in my Lawfare post is I walk through some long standing executive branch legal opinions which argue that the Constitution actually places limits on how broadly this statute can be read and also argues that as a matter of practice, as a matter of practicality, and as a matter of practice, this statute should only be used as a last resort.

And I do think it's interesting that when President Trump wanted to invoke the Insurrection Act during his presidency, Attorney General Barr referred to this kind of narrow approach to the Insurrection Act in counseling against it, counseling that it should only be used as a last resort.

Scott R. Anderson: You mentioned in your piece that there are certain constitutional factors that should bear, that the executive branch has identified as potentially bearing on the interpretation of the otherwise fairly broad language, at least parts of the Insurrection Act. What are those constitutional factors and how have they entered into the interpretation?

Laura A. Dickinson: Great. Yeah, so I'll just say kind of overall, you know, OLC has basically, the Office of Legal Counsel, has basically said that the Insurrection Act should only be used in response to a request from the state, or to enforce a court order in a situation where state officials are not enforcing it, the court order, or as truly a last resort in very extreme circumstances.

And what are the constitutional provisions that they cite? Well, they note that the broad provisions that were, the broad triggers that were enacted were implementing the 14th Amendment. So the 14th Amendment is key, and the 14th Amendment requires state action. So, according to OLC, unless there's a court order and state officials are refusing or unable to enforce the order, there has to be a situation where state authorities are either directly involved by acting or failing to act in denials of federal rights, or they are so helpless in the face of private violence that the private activity has taken on the character of state action.

So these are pretty extreme circumstances. The OLC opinions also point to the Supremacy Clause, which would give a slightly broader scope for enforcing a court order. But even then, they signal that should be against, in a situation where the state officials are not enforcing that court order or where it's difficult for that court order to be enforced in the state.

And then finally, this is something that doesn't get really developed in the OLC opinion. So I wouldn't attribute this view to OLC, exactly, although they mention Article IV Section 4, the provision of the Constitution that guarantees a republican form of government. And the federal government is supposed to protect that. And when there is domestic violence.

But some people have argued, like Bill Banks has argued, that the definition of domestic violence in that constitutional provision is quite narrow. And so the Insurrection Act can only be interpreted to cover situations that would fit within that constitutional definition of domestic violence.

Scott R. Anderson: So we know from Laura's essay, the Insurrection Act, while it has broad language and one doesn't have trouble envisioning, somebody making an argument can be used, to address potentially somewhat more limited concerns domestically, has a lot of reasons to maybe read it more narrowly and perhaps more most relevantly, at least hasn't been used that way that frequently. And certainly at the current moment, 2024, we're at a point where we have not seen the Insurrection Act actually be invoked in decades, I don't believe at this point.

Instead, when we see U.S. soldiers, and particularly National Guardsmen, deployed doing things like assisting with COVID relief or hurricane relief or other functions, or deployed to Washington D.C., for example, in the summer of 2020, as many of us experienced, they're being authorized by totally different statute and in a very different status. And that is this provision, 502(f) that Chris mentioned earlier.

Joseph, your contribution to the series focuses on Section 502(f). Talk to us about this provision that I don't think a lot of people had heard of, certainly before 2020, and probably don't know much about now. Talk to us about what it says, how it's been used, and what sort of risk profile it presents in terms of how it might be used in the future.

Joseph Nunn: Sure. And the fact that 502(f) is so obscure and so many people have not heard of it, is in fact part of the argument, in a way, for why this provision can't possibly mean what the Trump administration seemed to believe in then.

So, as Chris teed up earlier, Section 502, looking at the broader statute, is the principal statute that authorizes what's often called the Title 32 status, and for the National Guard. So the, as Chris mentioned, the National Guard can operate under state command and control, or federal command and control. And state command and control often occurs in state active duty status, where it's state command and control. It's a state mission with state funding. It's state everything.

When the National Guard is federalized, you have federal command and control, federal funding, federal benefits, federal pay. Everything is federal. In the middle is where Section 502 and Title 32 status come in. So, as Chris mentioned, this statute began life in the mid-20th century actually as a tool to facilitate training.

So the Congress imposes, sort of, extensive training requirements on the states, the ways in which they have to train their National Guard, and a certain number of training missions they have to carry out every year. And this is all laid out in Section 502. So to sort of balance out this burden they were putting on the states, the Title 32 status essentially allowed the federal government to foot the bill for all this training.

Over time, the ways in which Title 32 status can be used has expanded. And just to be clear again, in Title 32 status, the National Guard remains under state command and control, but they're federally funded, they're receiving federal benefits.

Now, one of the most recent expansions in the way it can be used is in addition to Section 502(f), really what we're talking about is Section 502(f)(2)(A). But for the sake of brevity, we'll just say Section 502(f). And this allows state governors to deploy their National Guard in Title 32 status to support a federal mission at the request of the president or secretary of defense. So what this is setting up is state command of National Guard who are carrying out a federal mission at the request of the president with federal funding and federal benefits.

Now, the way that 502(f) is written, doesn't impose any obvious limitations on this. It's fairly open-ended. The statute simply says that it can be used to allow a state's governor to deploy the National Guard to support federal missions at the request of the president or secretary of defense, end of sentence. This language was added in 2006.

In the summer of 2020, as you mentioned, the Trump administration used it to ask 15 state governors to send their National Guard into Washington, D.C. to help suppress protests following the police killing of George Floyd in Minneapolis, Minnesota. 11 of those state governors said yes, and deployed their National Guard into D.C. over the objection of D.C.'s mayor. This was an unprecedented use of 502(f).

As far as I'm aware, this is the only time that 502(f) has been used for this, these sorts of civil disturbance operations, and certainly the only time it's been used over the objections of the, sort of, local government in the jurisdiction where the troops were being deployed.

In defense of this operation, the Trump administration put forward essentially this, essentially unbounded interpretation about 502(f), saying that this authorization to support federal missions at the request of the president means it can be used to support any mission the President might request, that there’re essentially no restrictions.

That can't be right, for a couple of reasons. While it's true that, on its face, the statute is quite broad, the legislative history and the provisions placed within the statutory scheme suggest a much narrower interpretation. As I mentioned, this is a subsection of a statute about National Guard training requirements. This is quite an obscure provision. And this language was added in 2006 after Katrina, Hurricane Katrina revealed various shortcomings in the federal government's ability to respond to natural disasters, which is one of the National Guard's, sort of, traditional roles. And also in the context of the National Guard's, sort of, broadening role in the Global War on Terror.

And it certainly was meant to expand what was possible with 502(f) deployments. That's absolutely the case, but the legislative history indicates that those are really the two things that Congress was thinking about, was homeland defense-type missions that were in the context of Global War on Terror and facilitating National Guard responses to national natural disasters which is, again, a traditional role of the National Guard.

There's no indication that Congress intended to basically blow a giant hole in the statutory framework, governing domestic deployment of the military, which is what, sort of, boundless interpretation of Section 502(f) would do. Because if, you know, federal mission requested by the president means any mission the president could conceivably request then there's a sense in which the president no longer has a strong incentive to ever invoke the Insurrection Act if 502(f) can be used for these sorts of civil disturbance operations.

Now there is an important caveat here as well, which is however we interpret Section 502(f) there is one hard limit on what can be done with it. So, in Title 32 status, the National Guard, they remain under state command, which means, as a matter of law, they remain state officers exercising state authority. They have not been called into federal service, they have not been made part of the federal armed forces.

Now, the states are sovereign entities, and their sovereignty is co-equal and territorially limited. Indiana cannot reach into Illinois and exercise governmental power there without Illinois’ consent, because Indiana's power stops at the state line.

Well, not everyone listening to this went to law school, but everyone who did go to law school read World-Wide Volkswagen in their 1L year, talking about minimum contacts and what it takes for a state court to be able to have jurisdiction over a case involving out-of-state parties. And this is, it's the same reason here. The states are sovereign and their sovereignty is equal. One state is not more sovereign than the other.

Put much more simply, U.S. states may not invade one another. So if a president tried to do what the Trump administration did in 2020 in D.C., in a state, they would run into this problem, where essentially unfederalized national guard personnel can never be deployed into a state without that state's consent.

Chris Mirasola: Two very small things just to add on Joseph's really great explanation of this really wonky area of Title 32. So, one is just to kind of reinforce what he said about the broadness of the text. And I'm not the first person to say this, when Congress provides extremely broad text particularly in the national security framework, we, not infrequently, have a phenomenon similar to what we have right here, which is that the executive branch finds a particularly expansive way of interpreting that text, to maximize presidential discretion. So in some ways Congress shouldn't have been particularly surprised that we are where we are, but it is unfortunate.

And second is just to note the bipartisan history of the executive branch making increasing use of this very broad text, right? So you have National Guard deployments in 502(f) status starting in the Bush administration. This is the second Bush administration, that occur in this status, right? And that occurs during the Bush administration. It occurs again in the Obama administration. Occurs again in the Trump administration. They are increasingly large with each iteration.

We mentioned, right, the 2020 Black Lives Matter deployment. There is another deployment in 502(f) status after January 6th in which many thousands of National Guard were deployed to the Capitol. And again, it's important to recognize that these folks remain in their state status.

So when you have 20,000 National Guard at the Capitol, those are National Guard who are not responsible to the President. They're responsible to their state governors. They operate under memoranda of understanding that coordinate their functions, but there is no unity in command. There is no unity in providing discipline for these forces if they are to exceed the federal mission.

And then finally, National Guard and 502(f) status used expansively during the COVID pandemic to do everything from providing inoculations, to any number of other kind of healthcare and security functions across the country, again, over the course of a number of years. These folks are not restricted by the Posse Comitatus Act, and I forget if we've mentioned this explicitly so far in the conversation. But since they are state militia, they are not part of the armed forces of the United States, and therefore not restricted by the Posse Comitatus Act.

So, one of the reasons, and again, this is, you know, not causation, and we're kind of guessing, but it might not be surprising that we haven't seen an Insurrection Act deployment since the, since 1992, if the president has an authority worded as broadly as this one, that he can rely on to deploy the military in the United States.

Scott R. Anderson: Well, that's useful. And I think that brings us to your contribution, Chris, to this conversation, because we see we have statutes on the books that lend themselves or can be read broadly, even if there are good underlying constitutional and prudential principles and reasons why they should not be read so broadly. But that opens itself up inherently to the potential for abuse by the executive branch, in particular.

But you deal with the other part of the equation that a lot of people don't think about that goes beyond the statutory language. It goes to the checkbook: who pays for what are inevitably for any sort of military deployment, very expensive military deployments. And that comes back to this question of appropriations.

So talk to us a little about how appropriations and the funding element fits into this picture and, in particular, a really interesting angle of your argument is the fact that appropriations might provide a more convenient or approachable vehicle for congressional control in light of these statutory authorities. Talk to us a little about that.

Chris Mirasola:  Nothing brought me greater joy than to talk about appropriations law in the national security context, great. So I appreciate it.

I think folks underestimate the amount of bureaucratic time that is spent in DOD and elsewhere, on just the budgeting process, right? You can get literally nothing done if you don't have the money to do it. These appropriations acts are far more detailed than one might expect, given the enormity of the DOD budget in particular.

So, for example, if you go to the Army appropriation, it has a number of subdivisions. They get really nitty gritty, right? Because not only is there the text of the Appropriations Act, which is itself hundreds of pages long. It incorporates all this, kind of, associated legislative material, which is even more detailed. And so, again, you know, you're in the army appropriation. It'll tell you how much can be spent to purchase different types of calibers of bullets, right? Congress is not joking around when it's appropriating money, particularly in the procurement context, but also elsewhere.

And importantly, the DOD budgetary process is very long, right? The bureaucracy has to go through and, kind of, collect all of the information needed to guess how much they're going to need for this upcoming fiscal year. Congress then takes that and reduces it to text. And we have, you know, very specific buckets of money that are available to different components of the Department of Defense.

This means that when we have an unplanned deployment, much like a National Guard deployment within the United States, it's not in the budget, and so you've got to find money for it. Congress has provided specific mechanisms for how you can move money between parts of the DOD budget.

There are a couple of different mechanisms for doing this. The most important is this kind of general transfer authority, and it has an upper limit. You can't transfer more than six billion dollars a year between appropriations, and that might sound like a whole ton of money. It certainly would be in my house, but it's not a lot of money in the DOD house. It's a vanishingly small percentage of the DOD budget.

And given the number of unexpected crises that happen in any given year, we can just think about, you know, the past 10 months. That's a relatively limited amount of discretion that the department has, to move buckets of money around. This is even more limited in the National Guard context, right? Because the department is only budgeting for the planned missions where they're going to bring someone who's not normally part of the federal military, right?

So these National Guard folks, usually a member of their state National Guard, they're brought into federal service for a very particular pre-planned event, right? So we might think, okay, you component of the Idaho National Guard, we're planning on putting, you know, giving you a two-month deployment in 2024. If you're instead going to use that unit and send them to Washington, D.C. for three months, right, that's a lot of extra money that you haven't accounted for.

The provision of the Appropriations Act that allows you to move the six billion dollars of funds around basically has three substantive requirements that the department has to find before they can move the money. All right, so the first is that it has to be a higher priority military requirement.

The GAO and DOD have pretty much agreed that this is an area of incredible discretion for the department, and they basically, like, leave it to the Department of Defense to determine whether something is a higher value, kind of, military requirement. So not a whole lot of teeth there.

The second requirement has a bit more teeth, right? It says that it has to be based on an unforeseen military requirement. At the time, DOD is putting together the Appropriations Act. So, that does provide a little bit of a time horizon, right? And so, if you have a reasonable expectation that you might need to use the military and it's, you know, three days before you have to submit the budget. That was a foreseen requirement, and you can't move those funds for that purpose.

And then finally the purpose for which you want to use the funds can't have been specifically denied by Congress. And here again, I think, is a reiteration of the fact that Congress has a lot of power here, right? Congress can specifically say, DOD is not to use the National Guard to you know, whatever it is, perform a civilian law enforcement function in the District of Columbia in Fiscal Year 2024. That's an incredibly broad prohibition. I don't imagine that any Congress would enact it.

But it does speak to the fact that Congress can proactively say in the appropriations process, which happens every single year that this is how we're going to limit how the department is going to use its funds for these deployments that we care a lot about, that are based on statutes that are very broadly worded, really old, and where there's frankly sometimes a lot of political difficulty and creating momentum for legislative change.

[Introduction, part three]

Scott R. Anderson: For my next conversation, I wanted to dig into some of the policy implications of domestic deployments, including for the U.S. military, for U.S. national security, and perhaps, for Americans' broader relationship with both the military and other political institutions. To do so, I was joined by Mark Nevitt, a professor at Emory University School of Law, Elaine McCusker, a senior fellow at the American Enterprise Institute, and Lindsey P. Cohn, a professor of national security affairs at the U.S. Naval War College.

[Main Podcast]

So, Mark, so far in our conversation in this episode, from some of your fellow contributors to the series that inspired this podcast episode, we've been talking about legal authorities, about what the scope of authority the president has to use military forces domestically, what various legal constraints, limitations may or may not be on that.

 But let me ask you maybe a more fundamental question that has an arguably more direct bearing to some extent on how these authorities might be used, which is, within whatever scope the law allows, how does the military tend to think of its role in relation to domestic deployments?

How, what norms govern its approach or have traditionally governed its approach to these sorts of roles, when it is called up to fulfill them? And to what extent has that, have those norms been under pressure in recent years?

Mark Nevitt: Sure. It's a big question, Scott. It's a important question. You know, Lawfare listeners are likely aware of this, but how the military thinks about domestic deployments depends on what aspect of the military we're talking about and under what authority is the military operating under.

You know, your listeners are aware there's the Army, Navy, Air Force, Marines, Coast Guard, now the Space Force. Of course, the Army and Air Force have a National Guard component. Most of those forces as well have a reserve component. And they all deploy under domestic authorities that can be different depending on if the president is controlling them or the state governor.

So when I look at sort of the military writ-large, it's pretty broad. And I'll just focus on sort of how two aspects of the military think about this question. The first is just the National Guard, which is the Army and Air Force, which I consider part of the military. We see this broader operationalization of military forces in recent years. And so the National Guard has been more and more integrated into just military planning writ-large. Of course, they can deploy in different statuses which the Lawfare article. Mostly they're in a state active duty status reporting to the governor, but throughout COVID-19, they deployed as part of a Title 32 status.

So I would say as a general matter, domestic deployments to help and support local officials, such as disaster relief, giving out medical supplies, that's really kind of a core part of the National Guard mission. And the state National Guards do a good job of that on a day-to-day basis. They also have a little bit more experience, actually quite a bit more experience, in domestic military deployments. And we're seeing that, frankly, here where I'm at, in Atlanta, Georgia, where a lot of National Guard members were deployed domestically in the run up to Hurricane Helene, and then Hurricane Milton.

So with the National Guard, I think they view this as part of their core aspect for domestic military deployment. And you see that with COVID-19, which was really one of the largest domestic military deployments led by the National Guard in modern American history.

On the other hand, federal military forces, which I consider the Title 10 military, Army, Navy, Air Force, Marines, they're really focused on fighting in which, and winning the nation's wars and defending the United States and protecting the nation's national security and our interests broadly defined, you know, provide for the common defense.

And both Lindsay and Elaine have really written eloquently about this. Of course, they are ready, these federal military forces to conduct what's called defense support to civil authorities or civil defense operations, but they're very closely analyzed and scrutinized, and those requests normally flow from local officials up the military chain of command.

As a general matter, and my Lawfare article highlights this, there's sort of a, you know, a strong historical reluctance for the military to get overly involved in civilian matters, particularly for the civil defense operations, particularly when they're asked to do sort of law enforcement-type operations. And you see this pretty consistently through recent American history.

You know, Congress wanted federal military forces to play a bigger role in countering drug operations, as well as during the Los Angeles Riots in 1992, when the Marines were literally called in to the streets of Los Angeles. And there's a strong pushback from the commander, where he did not view his mission as fighting Los Angeles, you know, crime during that time.

So that's the, that's a long way of saying, Scott, I think the National Guard views this completely differently from the federal military forces, particularly when the federal military forces are being deployed in a law enforcement capacity.

Scott R. Anderson: So, that's an incredibly valuable, kind of, sense from someone who, of course, has spent a good part of their career in the military, as you have, Mark.

But let me, Lindsay, let me come to you to another part of the variable here, which is what we know kind of on the aggregate about how people view these deployments. Because, of course, the military's framing and approach to these issues is a major and significant variable about how authorities might be used. But so are the views of political leaders. And to some extent, the broader public. It sets the political parameters, political constraints on how leaders may use authorities that allow for domestic deployments.

What do we know about how the public at large and different important elements of that public view this question of domestic deployments and the use of military within the United States?

Lindsay P. Cohn: So before I begin, let me make clear that I am here in my personal capacity as an academic who studies these things. I am not speaking on behalf of the U.S. Naval War College and my views do not represent the War College or any other organ of the United States government.

First if I could, I would like to add just a couple of points to the excellent points that Mark made. One is a historical point and one is a normative point. The historical point is that, you know, Mark made a really great, gave a great explanation of the distinction between the active forces and the National Guard, and then there's also the reserves.

I think it's also important to understand the trends over time in how these forces have been used. So in the 19th century, you actually saw significant amounts of deployment of the federal military forces for domestic purposes.

But beginning towards the end of the 19th century, the early 20th century, what you start to see is a proliferation of state and federal-level law enforcement agencies that did not exist earlier. So the role of the active military in responding to domestic occurrences starts declining then.

And then in 1903, you have the Dick Act, which is what incorporates the state militias as the National Guard into, as federal reserve components. But the Dick Act specifically says they can be used domestically, if the president is not able to deal with whatever it is with the forces already at his command, which are the active forces.

So, for several decades there the National Guard were normally not federalized for domestic purposes. That started happening in the 1950s, after World War II, when what you had was significant conflicts between what the governor of a state wanted to do and what the president wanted to do. And the president then, Eisenhower and then Kennedy and Johnson tended to federalize National Guard forces in order to get them out from under the control of the governor. But what that also meant was that you had a significantly increased trend of National Guard being the ones doing these domestic deployments rather than the active forces.

And so what we have now is really about 120 years, maybe even more than that, of a declining trend of using the federal active duty component for these kinds of missions. And I think that's helpful historical background to the situation that Mark laid out.

The normative point is that there's a recent, very recent article by Kolby Hanson and Austin Knuppe that did a survey of active duty military officers at the U.S. Naval War College, asking them about their opinions about these kinds of deployments. And what they found was that—these are all officers, most of them senior officers—and they were strongly against having the active duty forces deployed for domestic law enforcement purposes. The scenarios were all protest and unrest, not pandemics or disasters.

And what they found, what the authors of this study found, was that this was stemming from a very, very deeply socialized set of professional norms where the military officers felt that this was not their role. They were much more in favor of using the police.

Now, to get to the actual question you asked, how does the public feel about this? The public is actually significantly more accepting of using the military domestically than the military are. Now, some recent research that Jessica Blankshain and Danielle Lupton and I did, which I mention in the piece, we did a type of survey experiment that gives you relative values, where we can say what the respondents prefer.

So, do they prefer seeing the police or the National Guard or the military? And we found, generally, that they prefer the police or the National Guard to the military. And that, you know, that was, somewhat to be expected, although it is interesting to see the juxtaposition of high trust in the military and low trust in the police and yet a preference for police over military.

But in this more recent article that just came out, what they could do is get absolute values as opposed to relative values. And what they find is the public may very well prefer the police to the military in some circumstances, but fairly large proportions of the public are okay with using the military for certain types of law and order purposes.

They also found that this was true largely across partisan lines, which is actually very different from a lot of other recent research. So we'll need to look into that more, but I think the bottom line is that the American public is certainly less averse to the idea of deploying the military domestically than the military is. But they would still probably rather see a more local and more law enforcement response if possible.

Scott R. Anderson: So, this is a really fascinating set of findings. And this sense of the view of how domestic deployments fit into our broader set of expectations, our norms, our values, both as members of the public, as members of the military, I think is really important. But there are other variables that could of course, come into play when we debate how to use legal authorities to make policy decisions. And the other ones are much more fundamental constraints about resources, about experience, about capabilities.

Elaine, you touch on a lot of this in your piece for the series. Talk us through some of the more practical and prudential challenges that domestic deployments present to the military. To what extent are they well suited to different types of domestic deployment roles? To what extent are they not?

And how much does the current resourcing and training and other capabilities picture of the U.S. military or components of the U.S. military fit with the potential for more demand and a more diverse array of domestic deployments in the future, as some people suggest, might be on the horizon?

Elaine McCusker: Yeah, really good question and really interesting topic. And I think that, I start with the idea of core functions, because I think that's important and understanding the practical challenges that we face. And by core function, I mean, what the military is expected to do and what only it can do. And Mark mentioned this earlier as well, I mean, the stated mission of the military is to provide the military forces to deter war and ensure the nation's security.  

And this is how the military builds its plans, and how it decides what equipment and training it needs and how it puts its budget estimates together. So when you put in emerging or other missions that are not part of this core function, it distracts resources and, you know, attention from what the military should be doing and what we expect it to do and what only it can do.

And I think this gets to Lindsay's point too because you, I think you're hearing this from the surveys of the military, that they prefer that you use those who are trained and resourced and experts in doing domestic-type missions to do those missions because they understand, you know, better than anyone that's not what their primary core function is.

And I think you add to that that the military has been underfunded to carry out what the nation expects of it for a long time. And so we have to consider this before we look at emergency requirements. In fact, over the last three years, the nation's most senior military leaders have listed shortfalls totaling more than $64 billion for the equipment, the infrastructure, and the training that it needs.

So, practically speaking, deployment, domestic deployments, which are not part of the plan or core function, have financial and other consequences as they pull those resources away from what was already planned. And then you add on to that, the shortfalls that we have, and you'll have a delay in building the competitiveness and the capacity and the readiness to do what only the military can do.

And these shortfalls have real impact. And, you know, when we delay programs, or we don't do what we plan to do, we can increase the cost of programs. We can impact the industrial pace and the supply chain and, you know, sort of, their capacity and their vulnerabilities that already exist. We can have lost and delayed competitiveness with our adversaries, as I mentioned, and as you mentioned, we can also have training accidents.

As a matter of fact, in 2023 we had 33 fatalities from training accidents that stem, in part, from some of the things I'm mentioning, where we have delayed training because we have unpredictable funding and that comes from, you know, this situation we're in where we have continuing resolutions every year. And we don't really even start our planned programs for at least three months of the fiscal year. And so that has an impact on our training schedules and on the parts supply and on maintenance and all those things we need to do.

In addition, you know, we have a real problem with poor housing conditions and, you know, deficits in our facilities, which is one of those things that is a place where when something happens that we didn't expect and we need resources, we often go to these accounts because there's something that's a little bit more flexible. And also, even though there may be some immediate consequences, sometimes we don't really see the danger and the impact of pulling money from those accounts until later on.

But over time, it accumulates. And now we're seeing where, you know, we have barracks and military housing and family housing that have all sorts of problems. Some of them, you know, just in, in terms of like, you know, cold water and mold and those sorts of things, but others are real like safety and fire hazards. So I think we have to really consider all of these aspects when we talk about potentially diverting our military to do the things that it hadn't planned on doing.

Scott R. Anderson: So Elaine, this question of resourcing of capabilities really is only relevant when we think about objectives or challenges. What is the military supposed to be doing? And for our national military, that really relates, first and foremost, to national defense and to the threat environment it's facing or strategic environment. We are in a moment of flux there to some extent, or perhaps we've just gone through a moment of flux.

You know, we see pretty strong bipartisan consensus around the idea that we're in a new era of strategic competition. Conversation of things like terrorism and other challenges, while still there, still very real in the background, have given way to a lot of major power competition, concerns over China and Russia and, you know, engagement with allies around those concerns.

What does these resourcing questions, this you know, fit question about domestic deployments and the resource strain, how does that relate to those broader strategic challenges in the environment we're operating in? Does that, in your mind, make these questions about capabilities particularly important as we weigh potential domestic deployments?

Elaine McCusker: I think it absolutely does. And it gets again to the concept of what our core functions are for the military and what we're expecting our military to do and what only it can do. And then you put that in the context of sort of the global threat environment, and the national defense strategy, and the national security strategy, which all outline those things that we're expecting our military to do, and those things that it plans and budgets to do.

Now, we already talked about the fact that there's plenty of shortfalls and developing the capabilities and capacity and posture that we need to accomplish those objectives. But we also have a couple of recent bipartisan commissions that have really, I think, emphasized the threat environment we face.

So the National Defense Strategy Commission of Experts said recently that the threats the United States faces are the most serious and most challenging the nation has encountered since 1945 and include the potential for near-term major war. And they also found that, in many ways, China is outpacing the United States and has largely negated the U.S. military advantage in the Western Pacific.

And one thing I didn't mention earlier when we were talking about shortfalls is that the industrial base, and particularly the shipbuilding and submarine industrial base has really fallen behind. As a matter of fact intelligence reports, unclassified recently, told us that China is really very much a shipbuilding and shipping nation and has 230 times the capacity for shipbuilding than the United States.

And so when you combine that with another of our commissions, our Strategic Posture Commission made observations also recently that today, the United States is on the cusp of having not one, but two nuclear peer adversaries, each with ambitions to change the international status quo, by force, if necessary, a situation the United States did not anticipate and for which it is not prepared. You really want to make sure that the resources that you're putting against your military capacity and capability, are going towards those things because there's not a lot of room for error here in assigning new missions to a military that really has its hands full and trying to do what the nation expects of it now.

Scott R. Anderson: So, we know right now the military is set up to pursue a particular vision of its mission, it has training, it has regulations and rules, a, like, very diverse and robust ecosystem of them. And this is a universe you've navigated, Mark, both as a military lawyer, and now as an academic. So let me ask you, you know, how does the military, as personnel approach this question of domestic deployments, how well suited are the rules and regulations it has to different types of domestic deployment missions? And where are their points of tension, where are their points of concern?

Insofar as we're talking about, you know, resource strain and threats and risks that come at the international plane, there's also a risk in terms of the military's ability to actually execute these missions, where is the fit and capability there? And to what extent, if more domestic deployments is actually something on the horizon, does adaptation need to take place?

Mark Nevitt: Sure. Another softball question, Scott. I appreciate that. I also want to just cosign to Lindsay and Elaine's very insightful remarks as well. And I'll dive into sort of the rules and procedures and how the Pentagon looks at this. And I'll focus on federal military forces. Of course, the military is pretty broad, as I mentioned in my first question, but how would a federal military forces look at both defense support to civil authorities and defense support to civil law enforcement agencies?

And there's two instructions I talk about in my Lawfare piece that I would highlight the most important word in those instructions is support. That is, resonates throughout those instructions. That's just how the military views its role when it's called upon to domestically deploy, and those instructions are pretty good guidance on how the military thinks about its role. The Pentagon uses sort of six criteria in evaluating any request of support to civil authorities.

And let me just be clear: these requests are increasing in number. In fact, frankly, that's because of more disasters. I write oftentimes about climate change and hurricanes, extreme weather and things along those lines. So emergency first responders at the local level are often overwhelmed, and they look at what's nearby who could potentially help us out.

So the Pentagon uses six criteria, looks at legality, lethality, the risk and safety of U.S. forces if they were to follow through this request, the cost of this, the appropriateness, as well as the readiness. So the instruction sort of walks you through how the Pentagon thinks about it. In my experience, if this is a bona fide request, it's political support for something along the lines of disaster response or some sort of special event, then it will be fulfilled. And so that's on the defense support to civil authorities.

The second sort of, piece to that is defense support to civilian law enforcement. And I think this is really maybe where your listeners are most interested in. And throughout that guidance, that regulatory guidance, it highlights that law enforcement operations, the local law enforcement operations, shall maintain the primacy of civilian authority at all times.

And it highlights that any sort of involvement of the federal military forces in civilian law enforcement should be for a clear mission and a specific time period in a specific locality, right? And so the last time there was a very robust request, and it was fulfilled under the Insurrection Act with the Los Angeles Riots and that was limited to Los Angeles counties and it lasted just 10 days.

It's really difficult, Scott, to gauge the effectiveness of, sort of, this second instruction, this defense support to civilian law enforcement, just because we haven't seen federal military forces deployed in a proactive civilian law enforcement capacity in 32 years. But, you know, I would just say, when I read that instruction, it highlights to me the primacy of civilian authority.

Let me talk about just the third, sort of, piece to this puzzle, which is rules of engagement versus rules for use of force, which Lindsay eloquently writes about this in her piece. So I think this is an important rule of procedure, which gets at sort of the troubling, potential operational risk if a military force was deployed domestically.

ROE-governed military operations and environments really where host nation law enforcement and civil authorities are nonexistent or otherwise resistant to the U.S. military presence. They have sort of a more of a combat mindset, and most military forces, the Title 10 forces, are trained in the standing rules of engagement issued by the Chairman of Joint Chiefs of Staff. If they were to be deployed in a civilian law enforcement capacity, it would move to a rules for use of force, which is more of a domestic legal environment, more based on a law enforcement and self-defense mission. That's a pretty big shift in mindset that would have to occur.

And the military does the best it can, but making that shift to combat mindset ROE, to law enforcement self-defense mindset, R-U-F, RUF, is really, really challenging in the best of circumstances. For the rules of use of force, the Fourth Amendment and existing constitutional protections and provisions would fully apply. And we saw that in the Los Angeles riots.

I'll give you just one vignette I talk about in the Lawfare piece, where Marines were accompanying a police officer for a domestic dispute and the police officer asked the Marines to cover me. And the Marines said, they viewed cover me as essentially laying down fire. And they lit up the apartment with 200 bullets. The police officer was actually referring to just be ready to use deadly force or some sort of legal force, if called upon. And so it just, kind of, highlights to me sort of this, the disconnect in terminology between rules of engagement and rules for use of force.

On the tension piece, I think that if the military is asked to take out a law enforcement mission that was contrary to these regulations, you would see some pushback. But let me be clear: I think the Insurrection Act—and I think other people wrote for the podcast have talked about this—it does provide pretty broad authorities for the president to enforce laws. It's antiquated, and the statute itself needs to be reformed.

So hypothetically if the president desired the military to enforce federal immigration laws on more of a nationwide basis, then you would see, I think, quite a bit of pushback from the military, but I think arguably that could be a legal order under the Insurrection Act as written. So, that would be extraordinary, of course not consistent with tradition, civil military norms, all the things that Elaine and Lindsay eloquently speak about. But again, it would arguably be legal based upon the Insurrection Act.

So, there would be a lot of tension between the military and senior military leadership if they were asked to take on this mission. And General Brown, the current Chairman of Joint Chiefs of Staff, has been crystal clear on this. He views this invocation to require an actual rebellion or insurrection. So, a pretty broad standard he's publicly stated in front of Congress. So, I think the tension would reside if the military is asked to take law enforcement missions that were different from historical norms and different from what the military feels they're comfortable doing.

Scott R. Anderson: And that really kind of brings us back to some of the considerations we came into this with. This is a question of norms and expectations. And at this point in particular, I think it begins to get at the broader foundational question as to what is the relationship, the proper relationship, between a military and democracy between military and the public.

Lindsay, you know you open giving us some real insight into how members of the public think about domestic deployments potentially. What do you see as the potential ramifications for increased domestic deployments, particularly given some of these resource concerns, training concerns, combat ability, if we were to do this in the short term, in a way that hadn't been anticipated by the military? What could the consequences be for the broader relationship between the military and the public confidence in the military, and perhaps even civil-military relations more writ-large?

Lindsay P. Cohn: So yeah, this is a huge question. I won't go into the practical effects on the military's capabilities because I think Elaine has already done a great job of that. So, Mark has been talking about both law enforcement and other interventions domestically disaster interventions, the pandemic, aand it is important to recognize that the public sees these differently.

But that being said, so, I've done a fair amount of historical research on the U.S.'s domestic use of the military for all of these kinds of things, but mostly for policing. And the main things that seem to affect whether the public continues to trust the military, whether the public views the military as a partisan tool or not, after these happen, is how the military conducts itself while it's happening.

And particularly, first, if the military causes any casualties, so this goes to what Mark was just discussing in terms of rules for the use of force. If the military appears to be acting in a one-sided manner that is sort of helping one side against the other, in a political sense, that tends to damage public trust in the military.

So, there are certainly things that if the military performs poorly or in a sort of biased way that could seriously affect public trust in the military as an institution. But one of the things that I mention in my piece is, what I think is more likely, is not so much a sort of across the board loss of public trust in the military, but a tendency to view the military as a partisan tool. That is that one group of the one party may view the military as being on their side and the other party may view them as not being on their side or things like that. And Michael Robinson's recent book “Dangerous Instrument,” does a really phenomenal job of talking about this.

That is a real concern. That's the kind of civil-military relations concern that you see in countries that do not have functioning democratic institutions of governance, right? That the military is, sort of, identified with one part of society against other parts of society. That's a real, very serious problem that all leaders should be looking to avoid, unless they themselves are trying to split the country that way.

Will it lower trust in the government overall? I'm not sure it could get much lower, at this point, so not super worried about that. So other things that could be a problem: If you see a heightened use of the military domestically, as we heard, that goes strongly against current military professional norms. But if we do it a lot, you're going to see those norms erode, within the military, right?

And that is a huge problem, largely because we do not have anything to replace those norms with. We have no current idea for a professional norm that tells military officers how to handle partisan situations aside from just trying their best to stay out of them. Right now, that's the only way that the military professional norm can help the military service member who is in a situation like that if that norm breaks down.

And I'm not necessarily saying that's the best norm in the world, stay out isn't always an option, but if that norm breaks down, we do not currently have a replacement norm. What that means is that members of the military will lose their internal cohesiveness, which could be problematic for both domestic and overseas deployments. It can be really problematic for anything the military tries to do as a whole, if you've got significant internal cohesion issues and mistrust issues. It could also be problematic for recruiting, although we haven't, the recruiting problems the military has right now don't seem to have to do so much with ideology.

So those are the things I would really worry about is that, you know, protecting democracy is usually something that a military can do, if democratic institutions are strong and the military doesn't have to make choices. If democratic institutions are weakening, and different sides of a struggle are trying to pull the military in on their own side, then you start having a real serious problem. And that's what I would worry about.

[Introduction, part 4]

Scott R. Anderson: Before ending our conversations, I asked each contributor what their main takeaway would be for anyone who might be thinking about how to approach this question of domestic deployments, from senior policy makers to legislators to members of the voting public. Here is what they said.

Joseph Nunn: Well, at the Brennan Center, proposing reforms is sort of what we do. And I propose multiple reforms in my piece, and even more in a Brennan Center report I recently published on the Posse Comitatus Act. For right now, I will limit myself to two things.

First, I would say that looking at 502(f), the statute is broad. There's no doubt about that, but that's not the same thing as unlimited. There are real hard limits on what can be done with this authority. Beyond that, reform does need to happen. Specifically, Congress should look at extending the Posse Comitatus Act to cover state deployments of the National Guard that occur at the request of the president or secretary of defense under Section 502(f). These really are fundamentally federal operations in crucial ways.

This is, you know, this is a situation where military personnel are deployed at the request of the federal commander in chief, to support a federal mission. They're paid with federal funds. They're receiving federal benefits. If the Pentagon even has control over certain important mission parameters, such as whether the guard personnel are armed. So when the federal government's influence over an involvement with a domestic military deployment is this pervasive, the legal restrictions that would normally govern a federal domestic military operation, namely the Posse Comitatus Act, should apply.

Chris Mirasola: Yeah. So maybe just two very high level points.

First is just, I think, to emphasize over the course of our conversation, the fact that there is an ecosystem of law and practice that has built up over the past 150 years, that has in really important ways chipped away at what we, I think, have commonly thought of as a restrictive legal environment and presented a number of loopholes by which the president and executive branch can use the military in potentially really problematic ways.

And as we're thinking about reform, it's important that we keep this kind of whole body of law in mind, because they have these, I think, as we've seen, sometimes quite problematic interactions, most certainly in ways not anticipated by any of the enacting Congresses for these different statutes. So, that's point number one.

And the second point is that as we're, again, thinking both about reform efforts, but also, you know, within the executive branch, only some of these statutes require any kind of transparency to the public about the purposes or the scope of these domestic deployments. The Insurrection Act is one of those, kind of, provisions of law that require a degree of transparency, but that is not the case for the majority of the exceptions to the PCA that are out there, or indeed any of the constitutional exceptions that the executive branch has asserted over the past hundred-odd years.

And so I think an important part of this conversation is making the purposes and the scope and the duration of domestic deployments transparent to the public, particularly at a time when we're concerned about misinformation, and especially as we get to the kind of critical moment in, in our election season. I think it's something that we can think about both in the reform process and also as folks that are executive branch officials are thinking about deployments, you know, in the coming months.

Laura A. Dickinson: I have two points. The first is that Congress should use its power and, you know, reform these statutes, you know, crack down on, through the appropriations process.

Specifically with respect to the Insurrection Act I think, you know, there's a bipartisan series of recommendations that have come from across, again, across the political spectrum for Congress to amend the act, whether it's substantively to constrain or tighten the language so it's narrowing those substantive circumstances in which the president can invoke the act, particularly without the request of a state, cutting off that language that suggests that privatized militias like the Proud Boys could be used.

But also procedural including procedural restrictions on the use of the act, reporting to Congress, including a requirement that Congress has to issue a specific authorization within a time limit if the president invokes the act. Or adding a judicial review provision. This is a little more controversial. I support all of these reforms. So I think Congress should use its power here with respect to the Insurrection Act and some of these other authorities.

But the second point is that our normative tradition is to, I think, be very careful about using the military domestically, particularly in a law enforcement capacity, and that it would really violate that tradition. And that tradition is reflected, you know, for example, in these OLC opinions that I've analyzed in my piece, right? The executive branch itself has interpreted the text of the Insurrection Act narrowly, both for constitutional and practical reasons, but it's just part of our culture.

And I think it's part of our military culture to be very restrained in the use of the military domestically. You know, it's not what the military is primarily trained for, certainly the U.S. Armed Forces, but even the National Guard, the training is uneven when you're talking about law enforcement, as opposed to deployment overseas. And I think that it's demoral- many military leaders have said that it would be demoralizing for the military to be used broadly in a type of law enforcement capacity.

So I think it's really important to recognize that. And it just, it would be a strong violation of our political culture and our norms to more broadly use the military domestically.

Lindsay P. Cohn: Yeah, so I think there are two things I would probably say.

One, is that the military is a reactive measure, not a proactive measure. And if what you have is problems with natural disasters and pandemics and domestic unrest, I would say you're much better off investing in solving those problems than you are in deploying the military to deal with them, you know, especially given all the things that Elaine talked about and that Mark talked about. So that's number one, is, you know, the best way to avoid this problem, the best way not to have any of these bad outcomes, is to invest in preventive measures and more appropriate responsive measures.

The second thing I would say is we have a lot of need for normative trust in institutions in order for those institutions to work. That normative trust is breaking down, and the military cannot fix that. There is no way that we can rely on the military to fix the kinds of societal and sociopolitical problems that they are being called upon to respond to at this point. That is not their job. And they are not suited to do it.

And so, again, I would say if you want to avoid some of these really difficult situations, the best thing to do is to try and heal the institutions of democratic governance that we have and not hope that the military steps in at the last moment and saves us.

Mark Nevitt: I would just offer sort of three different ideas, Scott, depending on who I'm giving advice to. So, for local policymakers, mayors, governors, city officials, I would encourage those types of people to just develop a relationship with their National Guard, as well as any federal military forces that are nearby. That's going to be good for civil-military relations writ-large. And when disaster strikes, when you're asking to call upon the military forces to assist, you already have those existing relationships.

So do, you know, more ex ante and less ex post. So you know, you can't surge trust in a emergency or natural disaster-type setting. But if you have those relationships, you have this emergency response, sort of, scenarios in place, whether the tabletop exercises or incident response, that's just going to pay dividends and maybe even save lives. And so I would encourage everyone who's listening to, to think about understanding, you know, what the military can do, what the military can't do. That's just going to pay so many dividends when you actually need the military, either for defense support, to civil authorities, or even maybe a law enforcement capacity.

The second, within the federal government, I would say Congress needs to look at Insurrection Act reform. I've written about this. Professor Dickinson's written about this. Jack Goldsmith's written about this. It strikes me as crazy that there's no notification, or sort of, time limit for domestic military deployment, but there is for an international deployment under the War Powers Resolution. That strikes me as something that should have bipartisan agreement so I would love to see Insurrection Act reform soon.

And I would just say within the executive branch, if you're looking at the military to take on domestic missions, think of the National Guard as, and the Coast Guard, we haven't talked about the Coast Guard, but as potentially better tools than the Title 10 federal military forces. They're local, you can keep the National Guard under state control. The Coast Guard has a lot of expertise in disaster response and other sort of scenarios. So think of them before you think of federal military forces.

I think COVID-19 somewhat validated this model where there was federal funding to the National Guard under Title 32 status. And we saw it was a little bit messy at first, but we did see, you know, keeping the National Guard under the state control with federal funding. I think that mission was somewhat validated. Oftentimes you can get to where you need to go without some kind of massive federal invocation of the Insurrection Act. So I would tell the executive branch to, you know, think more deeply about national guard and Coast Guard.

Elaine McCusker: So really great perspectives from Lindsay and Mark on this. And when I would, if I was a policymaker and I was weighing the pros and cons of domestic deployments, I would ask myself two questions. Is this something only the military can do and that it's best at doing? And is it more important than the U.S. role as a global power and keeping the nation secure? If the answer to both of those questions is yes, then you probably want to consider a domestic deployment. If the answer to both of those questions is no, then you probably don't.

Scott R. Anderson: Thank you for joining us for this special episode of the Lawfare Podcast. You can find the series of articles we are discussing at lawfaremedia.org.

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