Trump has threatened to invoke the act in order to use active duty troops to police protests.
Defense Secretary Mark Esper on Wednesday announced his opposition to deploying active duty military personnel into ongoing nationwide protests to act as law enforcement — for now — as President Donald Trump has threatened to do to quell unrest related to the death of George Floyd.
The defense secretary’s unusually public point of departure from the president came as he also explained that he did not know he was being led to Trump’s controversial photo op at St. John’s church outside of the White House, following a forcible clearing of peaceful protestors there.
Invoking the Insurrection Act is a deeply controversial step that would allow Trump to deploy active duty military personnel to conduct law enforcement. The 1878 Posse Comitatus Act prevents U.S. troops from performing such domestic duties in normal times.
The law should only be invoked "as a matter of last resort and only in the most urgent and dire situations,” Esper told Pentagon reporters during a press briefing. "We are not in one of those situations now. I do not support invoking the Insurrection Act."
Trump, frustrated with the scale of the ongoing protests in cities across the country, has threatened to deploy troops in states that “refuse” to use adequate force to stop demonstrators who have used the chaos to loot and set fires.
“I am your president of law and order and an ally of all peaceful protesters,” Trump said in the Rose Garden on Monday. “I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets.
“If a city or 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.”
State governors who control National Guardsmen in their states — especially Democratic leaders — quickly fired back on Trump’s threat to forcibly insert the U.S. military into state law enforcement affairs and some rejected Esper’s call to send their Guard forces to help contain protest-related violence, vandalism, and looting Washington.
“I reject the notion that the federal government can send troops into the state of Illinois,” Illinois Gov. Jay Pritzker, a Democrat, said on CNN on Monday.
D.C.’s Mayor Muriel Bowser has opposed federal troops in the city, but the decision to deploy the D.C. National Guard rests with the president.
Legally, the president has the right to send active duty federal troops into states without the permission of the governor, but it’s a deeply risky move.
Typically, if a governor wants federal military help with law enforcement, he or she must make that request under the Insurrection Act — a carve-out to Posse Comitatus — or use state Guard forces. But the president can also use the Insurrection Act unilaterally. That would allow him to use federalized National Guard troops and regular military forces for law enforcement purposes when “as a result of a natural disaster [the President determines that] domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.”
The debate over whether to invoke the Insurrection Act is both recurring and deeply controversial. In 1992, President George H.W. Bush invoked it amid riots in Los Angeles sparked by the videotaped beating of a black man by police. Bush’s executive order federalized elements of the California National Guard and authorized active military forces from the Army and Marine Corps to help restore law and order.
Two presidencies later, his son George W. Bush considered invoking it as lawlessness spread after Hurricane Katrina. The younger Bush pressed Louisiana Gov. Kathleen Blanco to accept military law enforcement assistance and allow federalization of the state Guard. Blanco was unwilling to relinquish control to the president, out of practical concerns that it would smack of martial law and political fears that Bush would blame the state government for a failed response to the disaster.
“Quite frankly, if [the Bush Administration had] been able to pull off taking it from the locals, they then could have blamed everything on the locals,” one state official said at the time.
Without Blanco’s consent, Bush was left with two options: invoke the Insurrection Act unilaterally, or leave policing to the Guard and law enforcement officers under her control. Bush stood down.
“Could we have physically moved combat forces into an American city, without the governor’s consent, for purposes of using those forces — untrained at that point in law enforcement — for law enforcement duties?” Paul McHale, then the assistant defense secretary for homeland security, told the New York Times at the time. “Yes.”
But, McHale asked: “Would you have wanted that on your conscience?”
On Wednesday, Esper also addressed his own controversial role in the forcible clearing of Lafayette Square so that Trump could walk to a nearby church for a photo op. Esper and a senior defense official initially claimed that he thought he was accompanying the president to visit troops stationed outside of the White House and inspect a vandalized bathroom in Lafayette Square. But on Wednesday he told reporters that he knew he was going to the church.
“I did know that following President Trump’s remarks on Monday evening that many of us were going to join President Trump and review the damage to Lafayette Park and at St. John’s Episcopal Church,” Esper said. “What I was not aware of was exactly where we were going when we arrived at the church and what the plans were when we got there.”
And he expressed regret over his use of the term “battlespace,” in a call with state governors, to describe American streets.
“It's not a phrase focused on people and certainly not on our fellow Americans as some have suggested,” Esper said, describing it as an operational term of art intended to suggest the physical environment in which the military is operating — in this case, American cities and streets.
“In retrospect I would use different wording so as not to distract or allow some to suggest we were militarizing the issue,” he said.
Esper also defended Joint Chiefs Chairman Gen. Mark Milley’s appearance at the protest wearing battle dress uniform — his camouflage — as the “appropriate uniform” for inspecting troops in the field.
Former military officers and analysts have pointed out that the chairman of the Joint Chiefs is not in the chain of command, making it inappropriate for him to dress like a commander in the field.
Milley did not appear with Esper at the press conference and has made no public remarks since walking the streets of Washington, D.C., on Monday night.