The Founders of the United States feared the use of military power to suppress democratic freedoms, which is why, in the Declaration of Independence, they accused George III of “affecting to render the military superior to the civil power.” But they also created a system with wide emergency powers, to include the Insurrection Act of 1807. While the use of the militia—today’s National Guard, when under state rather than federal control—for the maintenance of order was one thing, the use of the regular armed forces was something very different.
The truth, however, is that if Donald Trump wished to declare that a state government had lost control of public order and was in a state of insurrection or rebellion, he could call National Guard units into federal service, taking them out of the control of a governor. He could send in infantry units of the Army and the Marine Corps. He could probably suspend habeas corpus. And he could, by declaring a national emergency, invoke more than 130 different statutory powers. He might be condemned retroactively by the courts, but he could get away with it in the short term. And maybe not even just in the moment. In 1944, the Supreme Court upheld the validity of the Roosevelt administration’s internment of American citizens of Japanese ancestry two years before.
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What this means is that, de facto, some of the restraint on Trump’s abuse of the enormous reserves of physical force at his disposal rests with the leaders of the American military. They have, to a person, taken oaths to uphold the Constitution, and they mean them. But this is where a very different kind of courage is going to be needed.
These leaders know—and if they do not, their lawyers will tell them—that when he invokes emergency powers, the president can do a lot. They have been conditioned to view the president not the way their fellow citizens do, as a politician who holds the highest office in the land, but as the commander in chief, their superior in the strict military sense of the word. They have been accustomed to working for all kinds of people, and to swallowing personal objections, reservations, and doubts with professional compliance.
If they were ordered to do something flatly illegal, there is little question that they would disobey. But suppose, as is always the case with Trump, that the assault on their integrity and decency was ambiguous or unclear. What then?
In the classrooms of the nation’s war colleges, the next generation of general and flag officers will sometimes discuss whether officers should resign their commissions, usually in the context of what they consider the overriding of sound military judgment. It is usually nothing more than huffing and puffing about a difficult historical case. Military resignations occur periodically, but very rarely, and in almost no cases do they leave much of a mark. When they do, they usually involve a clash between a general and a secretary of defense, who does not have the same aura of authority as the president.