VALERIE RODRIGUEZ—Professor Christopher Mirasola examines how, despite its long tradition of hesitancy to deploy the military domestically, the United States has become a place where presidents can send military personnel into U.S. cities at their own discretion. He argues that today’s controversial deployments are not solely the product of one administration’s overreach but are also the result of overbroad statutes and morphed historical theories of presidential power.
The Current State of Play
Today, we see the U.S. President deploying hundreds of military personnel to cities he has publicly criticized for their governance and policies, such as Los Angeles, Portland, and Chicago. These military personnel are primarily members of the National Guard. On most days, they are civilians; statutes are what transform them into a military force for the state or federal government.
Once federalized, the National Guard members are ordered to perform “protective” functions. Traditionally, these functions were understood narrowly, for example, to guard federal buildings during protests, safeguard federal employees working inside them, and conduct brief detentions only when necessary to protect federal property. Recently, however, the scope of these protective functions has broadened. Mirasola notes, for example, that the National Guard has been deployed to detain individuals for extended periods, accompany law enforcement on deportation raids, prevent individuals from interfering with those raids, and conduct presence patrols in public spaces to project the “might of the federal government.”
Legal Authority to Mobilize the National Guard
The statutory authority the administration has primarily relied on to mobilize the National Guard is 10 U.S.C. § 12406. Professor Mirasola explains that Section 12406 allows the President to call on the National Guard into federal service when (1) the U.S. is invaded or in danger of invasion; (2) there is rebellion or danger of rebellion; or (3) when the President is unable with the regular forces to execute the law. Questions remain unanswered, however. What counts as a “rebellion?” How much violence or interference would be sufficient? What are these “regular forces” the statute refers to?
While courts agree the President should have a considerable amount of deference in determining whether the factual predicates have been met, they disagree on how far that deference extends. Mirasola underscores how overly broad and vague the statute is, especially when contrasted against a sister statute—10 U.S.C. § 12304—which authorizes mobilization in response to weapons of mass destruction and terrorism threats. Unlike the latter statute, § 12406 contains no explicit time limits, ceilings on the number of troops, or congressional notice requirements.
Legal Authority to Authorize the Mission
To authorize specific actions, the administration has leaned on the theory of an inherent presidential power: the “protective power.” Under this theory, by virtue of the Take Care Clause, the President has an implied constitutional power to use the military to protect federal persons, property, and functions. Mirasola makes clear that this theory is not rooted in constitutional text but rather the source of authority comes from history. Mirasola, moreover, criticizes reliance on this traditional theory for its lack of historical continuity. Historically, “protective power” had been interpreted narrowly to encompass the protection of federal personnel and property, but in modern times has expanded to include federal functions.
Even if we accept that the Constitution implies this protective power, Mirasola notes that the Youngstown Sheet & Tube Co. v. Sawyer framework limits how far implied presidential authority can extend. Under Youngstown, Congress may extensively legislate in an area and thereby cabin implied presidential powers. He points to a large body of statutes where Congress has created and empowered federal law enforcement agencies, such as the Secret Service or U.S. Marshal Service, and detailed how the military may assist them. In his view, Congress has entirely occupied the field.
Moreover, the theory must reckon with the Posse Comitatus Act, an old statute construed to forbid military involvement that is “regulatory or prescriptive,” as in pervading law enforcement. Mirasola explains that when the protective power is being used to displace police or detain individuals for extended periods, it becomes difficult to say they are not stepping into law enforcement activity.
More Challenging Questions to Come
Mirasola acknowledges that even when litigation over § 12406 and the protective power is settled, challenges regarding domestic military deployment will not end. A number of other old, vague statutes remain, for instance, and will likely become the sources of authority for future military deployments. He also points to laws allowing military and law enforcement integration for counter-drug operations and highlights 10 U.S.C. § 252 of the Insurrection Act, which broadly allows state militia to be federalized to enforce the law when rebellion makes it impracticable.
Looking ahead, Mirasola foresees especially difficult questions to arise under 32 U.S.C. § 502, which permits the President to request that a governor provide their National Guard, under state status, to perform a federal function. While the statute clearly requires consent of the governor supplying the National Guard personnel, it is not clear whether it requires the consent of the governor of the state where those forces are ultimately deployed. Mirasola predicts this will spark Tenth Amendment debates.
Further, Mirasola looks at two criminal statutes that prohibit bringing military troops at polling places unless necessary to repel “armed enemies” of the U.S. and prohibits military troops from interfering with voting rights. These statutes only apply to federal military personnel. Under § 502, this means that National Guard personnel under state status that perform federal functions are not subject to those voting-related statutes or the Posse Comitatus Act. Therefore, Mirasola warns we might see uses of the military in and out of election sites.
No longer can we rely on the norms. The erosion of U.S. presidential norms exposes a weak, bare-bone legal architecture. Mirasola emphasizes that this has enabled the internal military deployments we see today and the many challenging questions courts will have to answer as the architectural cracks continue to be uncovered.
Visit the Seminar Main Series Page here.
Watch the episode here.
