Donald Trump sparked angry reactions when he proposed that the US military could be deployed against the “enemy within” on election day. While such talk of using U.S. forces against political rivals has understandably shocked the public, many are concerned about the potential for civil unrest on Election Day and beyond.
If unrest is severe enough, the president or state governors may attempt to deploy troops to help law enforcement restore order. But will it be legal?
At the Center for Ethics and the Rule of Law, we conducted a hands-on exercise to explore this question, which is likely to be of great importance in our home state of Pennsylvania. What we learned and proceeded to report on was instructive, surprising and disturbing.
Especially after January 6, it is not difficult to imagine extreme situations involving civil unrest at polling places – however unlikely – in which the National Guard or even regular US military forces could be called in to regain control. However, what we find most worrying is the uncertainty around which authorities can be legally resorted to to confront these outbreaks of violence at the polls.
To give an example: can the president (or governor) deploy forces to restore order at polling places?
Posse County Code prohibits the use of the military in local law enforcement. In this context, an exception – the Insurrection Law – would allow, in theory, the president to use forces in the application of domestic civil law to suppress “insurrection or insurrection.” But there is an exception to the exception.
A little-known law known as Section 592, passed by Congress in 1865 and signed into law by President Lincoln, directly addresses this issue. Section 592 prohibits the use of military force at the polls, “unless such force is necessary to repel the armed enemies of the United States.”
Is using force to stop violent attacks designed to prevent citizens from freely casting their ballots at polling places equivalent to repelling “armed enemies of the United States”?
This question leads to the question of whether violent domestic extremists should be considered “enemies of the United States.” This phrase used to be reserved for foreign threats to national security. Assuming this approach remains consistent, Section 592 would prevent the president from calling troops to a polling place to quell domestic violence in an election. The question therefore arises as to whether this provision supersedes the Insurrection Law, which may be applied to the opposite effect.
There is no case law addressing the relationship between these different levels of federal law. If such a situation arises, a court may deny jurisdiction on the grounds of a political issue, but a court accepting jurisdiction would likely find that Section 592—because it is more specific and time-delayed—exceeds the applicability of the Insurrection Act.
Would it be helpful if the governor called in the National Guard instead of the president? Maybe not. Pennsylvania and some other states have provisions that parallel federal ones, restricting both governors and the president from calling troops to the polls.
At least when it comes to civil unrest at the polls, fears of harsh military responses that would intimidate voters are unrealistic, because they are prohibited by law. But in a worst-case scenario, involving violence at the polls, could military assistance be necessary for civilian law enforcement?
While many calls to revise the Insurrection Act often require limiting specific language that is too broad, here is an example where the Insurrection Act may actually not do enough to protect the country from the potential influence of extremism. internal, given the critical importance of free democracy and fair elections to the survival of American democracy. Whether the Insurrection Act makes us safer depends, of course, on who uses it and how it is used.
A recent issue has deepened the complexities of our practice. Let's assume that deploying troops to polling places would probably be illegal, but the governor and president want to do it anyway. Could they conspire to get the president to federalize the National Guard and issue orders, knowing that their new immunity would serve as a shield against criminal charges even if a clearly illegal order were issued? This is just one of many complications that may arise from the Supreme Court's immunity ruling in Trump v. United States. It shows how the repercussions of this decision could make the country less safe in countless ways.
We hope that nothing we imagine in the theoretical exercises will come true, but we must be prepared. The most obvious lesson was that we are not prepared to face such a scenario, not because federal, state, and local authorities have not done everything possible to prepare for every emergency, but because the legal authorities that could address them remain in dispute. and unclear.
With the election around the corner, it is too late to resolve the legal gray areas, but addressing as many remaining legal and operational weaknesses as possible – with all the planning and forward thinking available – could make the difference between a transition of chaotic power and a peaceful one.
Claire Finkelstein is the Algernon Biddle Professor of Law and Philosophy, as well as director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
Brenner Wessel is a professor of law at Villanova University and a member of the Class of 1964 at the Stockdale Ethics Center at the United States Naval Academy.
