This twitter thread by law professor Steve Vladek is informative. I had questions about Posse Comitatus and he answered them. It’s not reassuring:
There’s a fair amount of disinformation and misinformation going around about the federal government’s legal authority to use troops to help respond to the unrest in Minneapolis.
Here’s a short #thread with answers (and citations to authority) for the five big questions:
1. “Isn’t the military already on the ground”?
A: Yes, the MN National Guard has been deployed by Gov. Walz. But the Guard wears (at least) two hats. Right now, it’s wearing its “state” hat, subject to the control solely of the Governor, which is uncontroversial.
2. “Doesn’t the Posse Comitatus Act bar use of federal troops for domestic law enforcement?”
A: No. The PCA only bars such use of the military *without* statutory authorization.
18 U.S. Code § 1385 – Use of Army and Air Force as posse comitatus
Several statutes *authorize* such use of the military for law enforcement.
2a. As relevant here, the Insurrection Act (uscode.house.gov/view.xhtml?pat…) and 10 U.S.C. § 12406, which governs federalization of Guard troops (law.cornell.edu/uscode/text/10…).
When these statutes are (properly) invoked, there is no Posse Comitatus problem with domestic use of the military.
3. “Doesn’t the Governor have to request troops before the President can send them?”
A: Not necessarily. Although *some* of these authorities require a state request before federal regulars or federalized Guard troops can be used for domestic law enforcement, some of them don’t.
4. “But if the Governor has already called out the National Guard, doesn’t that block them from being federalized?”
A: No. The authorities to federalize the Guard do not depend on what they were doing beforehand; there may just be less *need* to do so if they’re already on site.
5. “Okay, fine. So what are the actual limits on when the President can use Guard or regular troops for domestic law enforcement?”
A: I’ve saved the hardest one for last. The Insurrection Act is open-ended, leaving to the President the power to decide if circumstances warrant:5a. Historically, the real checks on abuse of these authorities have been political. The Insurrection Act hasn’t been invoked since 1992—largely because domestic use of the military is generally unpopular.
But it’s not implausible to argue that these statutes *could* apply now.
5b. And it’s hard to imagine courts second-guessing factual determinations by the President that circumstances warrant use of the military to restore order.
Instead, the real constraint today might be *responsibility*; if Trump invokes these statutes, he’d own all that follows. 5c. There’s a lot more to say on the topic, but I don’t want to belabor the key points.
If you’re curious about the broader historical and constitutional foundation for these authorities, see this paper I wrote back in 2004.
P.S. It’s worth adding that, once deployed in this context, the military’s job is to supplement civilian law enforcement, not supplant it—enforcing same laws with same penalties.
Many will still be wary of domestic use of troops, but it’s not a per se threat to the rule of law. See also:
The implementing DoD regulations are *key* to how the PCA + Insurrection Act are followed by troops on the ground. The military counts 14 statutes that permit direct support to law enforcement. See enclosure 3
This would not be coming up right now if we didn’t have a president who has been dying to put his Big Beautiful Expensive Military on display in American streets since before he took office. It’s not normal for a president to eagerly threaten to use the armed forces to quell domestic unrest as he’s been doing the last few days, but I suspect this was always something he had in mind when he built up the military.
He wants to do it. And it appears that he can. So get ready.
The Pentagon said Saturday it was ready to provide military help to authorities scrambling to contain unrest in Minneapolis, where George Floyd’s death has sparked widespread protests, but Gov. Tim Walz has not requested federal troops.
Jonathan Rath Hoffman, the chief Pentagon spokesman, said several military units have been placed on higher alert “as a prudent planning measure” in case Walz asks for help. The Associated Press first reported on the potential deployments and, citing sources with direct knowledge of the orders, named four locations from which soldiers would be drawn.
Hoffman did not identify the units, but other officials said they are mainly military police. Hoffman said these are units normally on 48-hour recall to support state authorities in the event of crises like natural disasters. They are now on four-hour alert, Hoffman said.
The Pentagon said they would not go unless the Governor specifically asked for their help.
But as you can see, that is not necessary. The Commander in Chief could order it on a whim after he sees something on Fox that upsets him.