Trump Can't Lawfully Use Armed Forces to Sway the Election: Understanding the Legal Boundaries

[Nevilledog]

Link to tweet

https://www.justsecurity.org/72500/trump-cant-lawfully-use-armed-forces-to-sway-the-election-understanding-the-legal-boundaries/

Over the last few months, the Trump administration has used military and militarized force to quell Black Lives Matter protesters, citing domestic security concerns. Now, as Trump continues to threaten to send in active-duty troops to crack down on civil rights protests, he has also been explicit about the possibility of using law enforcement to interfere with the election. He threatened to command law enforcement to patrol the polls to prevent purported voter fraud; he told Fox News’ Judge Jeanine that he would use the Insurrection Act to “put down” election night unrest if he wins; and former advisor Roger Stone suggested that Trump should use active duty military, the FBI, and U.S. Marshals to interfere with the election and stop state officials from counting votes. As with much of what Trump says, it’s hard to know whether he intends to follow through. But the mere fact that he has made these threats has the potential to deter voters (which may be the point). And any attempt to put his words into action would raise serious legal questions. No matter how broad a president’s discretion on matters of national security, nothing empowers the president to exercise his authority to interfere with an election.

Statutory and Constitutional Limits on Deploying Military and Militarized Forces

In our democracy, the president has only the powers granted by the Constitution or lawfully delegated by Congress. The Constitution provides the president neither exclusive control over the military, nor emergency powers to command military forces. This is not a technical question of military law; this is about a broad balance of powers to ensure that no president has a personal “palace guard” at their command. The Founders intentionally divided control over the military between Congress and the president as a bulwark against tyranny they had experienced under a monarchy. The Declaration of Independence, for example, decried the tyrannical conduct of George III, including that “[h]e has kept among us, in times of peace, Standing Armies, without the Consent of our legislatures.” A fundamental feature of our Constitution is preventing unchecked presidential power to use the military for domestic law enforcement purposes.

Specifically, the Constitution reserves to Congress the power to legislate how the militia may be deployed domestically. The Militia Clauses in Article I, § 8 authorize Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” This legislative power is related to the obligation that the Constitution imposes on the United States as a whole to guarantee the states a “Republican Form of Government,” and to protect the states against invasion and, “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” The president’s lawful authority to deploy troops for domestic law enforcement is constitutionally limited, therefore, to the instances where Congress prescribes it. It would be the ultimate subversion of these constitutional provisions to allow the president to use any statutory authority to deploy militarized forces for law enforcement surrounding an election — the defining feature of our republican form of government.

As a general matter, Congress has prohibited the use of military force for domestic purposes. In 1878, Congress passed the Posse Comitatus Act, which provides criminal penalties for anyone who “willfully uses any part of the Army or Air Force as a posse comitatus”—that is, as an auxiliary of law enforcement—“or otherwise to execute the laws, … except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” The Act has come to be understood as enshrining the bedrock democratic principle that use of the military to regulate civilians is antithetical to liberty.

*snip*

[uriel1972]

1. assuming the players respect constitutional limits

[dchill]

2. He can't lawfully do it.

But he can do it.

[DENVERPOPS]

3. If the last four years

have shown us anything, Trump and RepubliCONs have willfully done everything and anything they wanted, Rule of Law and U.S. Constitution be damned.

I read somewhere else where the RepubliCONs have it already figured out how to use the Military despite the Posse Comatatus Act.
They merely activate a so called Insurrection Act? to enable them to use the Military against The U.S. citizens......

They will stop at nothing this time around people........

[DFW]

4. Respecting legal boundaries

This has not exactly been a Republican strongpoint this past half century or so.

[Cha]

5. Lock the Fucker UP before he Breaks

Another Law.

I'm Rt this anyway.. maybe someday with a Senate, House, & Pres Biden.

[DSandra]

6. When does Trump care about laws?