Against the Insurrection Act

President Trump and Senator Tom Cotton want to use the military to quell riots. That would be catastrophic.

Senator Tom Cotton argued Wednesday in The New York Times that given the rioting and looting in multiple U.S. cities, “it’s past time to support local law enforcement with federal authority.” Some governors have mobilized the National Guard, the Arkansas Republican observed, yet others refuse to or are still overwhelmed. “In these circumstances,” he wrote, “the Insurrection Act authorizes the president to employ the military.” The op-ed dovetailed with President Trump’s June 1 statement that 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.”

Use of the Insurrection Act to quell domestic riots is not unprecedented. For example, it was invoked in 1992 during the Los Angeles riots. Nor is it without appeal to some Americans—and not just authoritarians. Some approve of and trust the military far more than municipal police departments that they find corrupt and abusive. And conceivably the military would quell riots with less loss of life than would cops in some areas, and be more diligent than some police departments in distinguishing lawful protest from rioting.

Still, the approach would risk catastrophe. Local leaders and police officers are more accountable to the people than soldiers are, and they know their needs better than Washington politicians do. Where extra help is needed, the National Guard, under the command of governors, is up to stopping riots. Deploying troops against the wishes of state and city leaders would only inflame passions, and could provoke a constitutional crisis.

Perhaps that’s why Secretary of Defense Mark Esper opposes the move. “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. We are not in one of those situations now,” he said yesterday in a press conference. “I do not support invoking the Insurrection Act.”

Those reasons alone are sufficient to reject the approach. Yet another concern should loom even larger: Trump has shown himself unfit to lead the sorts of operations under discussion.

From the start, Trump has fanned the flames. Last month, he tweeted: “Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts.” But the Fourth Amendment prohibits simply shooting looters unless they pose an imminent threat to a person. In other words, he has already suggested responses that would violate his oath of office.

More recently, Trump misused federal troops in Washington, D.C., where they are already deployed under his control. “When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution,” General James Mattis, the former secretary of defense, wrote afterward. “Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”

Mattis went on to warn that militarizing our response sets up a false conflict between the military and civilians, eroding the moral ground “that ensures a trusted bond between men and women in uniform and the society they are sworn to protect, and of which they themselves are a part.”

That caution would apply under any president. “We must reject any thinking of our cities as a ‘battlespace’ that our uniformed military is called upon to ‘dominate,’” Mattis added. “At home, we should use our military only when requested to do so, on very rare occasions, by state governors.”

But the president is a man who once said this about the murder of peaceful protesters:

“When the students poured into Tiananmen Square,” he told Playboy magazine in the March 1990 issue, “the Chinese government almost blew it. Then they were vicious, they were horrible, but they put it down with strength.” Trump continued, “That shows you the power of strength."

No president has ever been less morally or temperamentally fit to lead an effort to quell unrest. And the public is primed with rational distrust that will undermine him from the start should he attempt it. Congress should consider repealing the Insurrection Act, lest he invoke the law anyway