Twenty-one mainly Democratic U.S. senators, Mazie K. Hirono of Hawaii among them, sent a letter Wednesday to the U.S. military’s top leaders expressing “grave concern” over the possibility of President Donald Trump invoking the 1807 Insurrection Act to mobilize active duty personnel or federalize National Guard troops to quell nationwide protests following the police killing of George Floyd.
“This is a critical moment for our nation,” the lawmakers said. “How our institutions respond will determine whether the coming weeks and months lead to healing and unity, or continued derision, discord and injustice. We urge you to refrain from using the United States military to diminish or suppress the peaceful, free expression of Americans who are exercising their civil liberties in a call to hold government institutions to a higher standard in the fight for racial justice.”
Under the Posse Comitatus Act, the letter to Defense Secretary Mark Esper and Joint Chiefs Chairman Gen. Mark Milley states, U.S. Armed Forces “are prohibited from performing law enforcement duties in the United States outside of Constitutional authorization or an act of Congress.”
Under certain circumstances, the Insurrection Act of 1807 allows the president to deploy military personnel within U.S. borders in the event of an insurrection, rebellion, or extreme civil unrest, according to the letter.
“The Insurrection Act, last used in 1992, is an exception to the Posse Comitatus Act that is understood to only be invoked under extreme conditions,” the senators said. “We believe the president’s interpretation of the Insurrection Act contravenes its purpose and spirit significantly departs from previous applications throughout our nation’s history.”
The lawmakers said they “oppose in the strongest terms the use of the U.S. military to impede the First Amendment rights of Americans.”
“In cases where there is a need for additional security, state and local law enforcement, with support from the state National Guard, who live with and within the communities they serve, under the control of each state, are fully capable of responding,” the letter states.
Trump said Monday that all Americans were “rightly sickened and revolted by the brutal death of George Floyd. My administration is fully committed that, for George and his family, justice will be served. He will not have died in vain. But we cannot allow the righteous cries and peaceful protesters to be drowned out by an angry mob.”
He added that “we are ending the riots and lawlessness that has spread throughout our country,” and that he “strongly recommended to every governor to deploy the National Guard in sufficient numbers (to) dominate the streets.”
“If a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them,” Trump said.
White House press secretary Kayleigh McEnany was asked Wednesday if Trump was considering invoking the Insurrection Act.
“The president has the sole authority to invoke the Insurrection Act,” she said. “It is definitely a tool within his power. This president has one singular aim, and it is protecting America’s streets.”
“We cannot have burning churches. We cannot have police officers who are shot. We cannot have businesses that are looted and destroyed,” McEnany added. “The Insurrection Act is a tool available. The president has the sole authority. And if needed, he will use it.”
But at this time, “he’s relying on surging the streets with National Guard. It’s worked to great effect here in D.C. and in Minnesota as well,” she said.
Esper also said Wednesday that he continues to believe that the National Guard “is best suited for performing domestic support to civil authorities in these situations, in support of local law enforcement.”
“The option to use active duty forces in a law enforcement role should only be used as a matter of last resort, and only in the most urgent and dire of situations,” Esper said. “We are not in one of those situations now. I do not support invoking the Insurrection Act.”
In 1992 President George H.W. Bush used the Insurrection Act to send 3,500 federal troops to help with riots in Los Angeles after four police officers were acquitted in the beating of Rodney King.
President Lyndon Johnson deployed military forces in 1965 to protect civil rights protesters from police violence on the march from Selma to Montgomery, Ala., the website Lawfare noted.
The Insurrection Act has been invoked at least 19 times since 1807 by 11 presidents, Chuck DeVore, vice president of national initiatives at the Texas Public Policy Foundation, wrote in the Federalist.