Can President Trump Really Send In The Troops To Chicago And Other Cities?

donald_trump_president-elect_portrait_croppedWe have previously discussed how President Donald Trump has repeatedly asserted constitutional authority that he does not have in dealing with the pandemic.  The President routinely ignored the principles of federalism in such claims of control over states in their internal health and policing decisions. He is not alone.  Cities like Portland have demanded that federal officers leave the city and stop making arrested.  While there are legitimate questions raised about the conduct of federal officers in putting people into custody and the use of force in Portland, those concerns related to the use of federal powers, not the basis for those powers. The federal government has full authority to protect federal buildings and to carry out arrests for federal crimes in any city. Current reports coming out of the White House appear to refer to surging law enforcement personnel, not sending military personnel.  That would be constitutional if used for protect federal assets or enforce federal laws. That is the flip side of federalism.  But how about the recent claims that the President is about to take over policing from cities like Chicago? The answer is that such a federal deployment without a request from the governors would be unwise but would be legal.  However, there are practical and legal reasons why such any massive deployment is unlikely.

President Trump has declared that he will send in federal forces to quell the violence in cities like New York, Chicago, Philadelphia, Detroit, Baltimore and Oakland, California.  He has used these threats to highlight what he calls the poor records of  “liberal Democrats” like Chicago’s Mayor Lori Lightfoot.  The constant reference to the party affiliation of the mayors by the President only diminishes the position of the federal government is taking any action in these cities.

As many on this blog know, I am from Chicago and most of my family still lives there.  I am devastated by the violence shown every night on television. However, President Trump is suggesting an unprecedented deployment if he is serious in saying  “We’re sending law enforcement. We can’t let this happen to the cities.”

What he can clearly do is what he did in Portland. Send in federal forces to protect federal buildings and arrest those who commit federal offenses.  That can lead to an expanding presence.  As more protesters respond to the federal presence, the federal forces can be expanded at their discretion to meet that challenge.  It can become a cause-and-effect controversy like the one being raised in Portland.  However, a judge who orders the federal forces reduced or out of the city would face a rapid appeal and reversal in my view.

That type of deployment to protect federal enclaves and buildings can be done without any special proclamations or orders. It is part of the inherent authority vested in the federal government. Indeed, it does not even require a special executive order.  The Attorney General or Secretary of Homeland Security may deployed federal officials to protect buildings, support law enforcement activities, or carry out arrests. These are not military troops, but law enforcement personnel being assigned law enforcement duties.  The fact that the cities have not requested additional federal law enforcement personnel is relevant to their legality of their deployment.

440px-37_Lyndon_Johnson_3x4President Trump’s rhetoric suggests something far more robust. He is referring to rising shootings and criminal acts in these cities.  To combat such crime, the federal deployment would have to be massive.  First there is the question of simple practicality in such claims. Sending in a couple hundred federal officers will do little to quell the violence in the neighborhoods of Chicago — far removed from federal buildings. On a practical level, it is hard to see how even a military force could do so short of imposing martial law over millions of Americans.  Most of these shootings have occurred in neighborhoods far removed from riots or protests. The Chicago Police Department has roughly 12,000 officers.  The First Army Division is roughly 18,000 soldiers.  It would take a division or more to substantially increase patrolling in actual neighborhoods as opposed to hotspots like those around federal buildings.  Of course, that is what President Lyndon Johnson did in 1967 when he sent in the 82nd and the 101st Airborne Divisions to Detroit to quell riots after the assassination of Martin Luther King.

Second, there is the authority.  We previously discussed this issue in relation to Washington, D.C. and Seattle where I criticized the President for exaggerating his authority in threatening to send in troops.  I also criticized the respective mayors in those cities for their own statements.

As I have previously stated. police powers in the United States mostly reside with the states. The Constitution gives Congress authority to overcome disturbances. It can “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”

With the Insurrection Act, Congress authorized presidents to use troops in response to rioting that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The president may intervene if requested by a state legislature to suppress an insurrection. The Insurrection Act also allows for unilateral action for cases of unlawful obstruction, assemblies, or rebellion against the United States.

President Trump does have unilateral authority under the law. Indeed, the recent efforts in the House by Democratic members like Rep. David N. Cicilline to limit the Insurrection Act acknowledges that he does have the ability to make such a unilateral proclamation.  It can be challenged as unwarranted but, once again, Congress has written a law that gives largely unfettered authority in declaring such unlawful obstruction, assemblies, or rebellion against the United States.

The law simply states:

“Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.”

440px-George_H._W._Bush,_President_of_the_United_States,_1989_official_portraitThis power has been used repeatedly by presidents since Thomas Jefferson. The last president to do so was President George H.W. Bush during the 1992 riots in Los Angeles, an obvious historical precedent that the Trump White House would cite to handle riots in cities like Portland.  While the Posse Comitatus Act of 1878 prevents the use of the United States military in law enforcement, this Act is an exception to that rule large enough to drive an Army division through.

It is certainly true that President have largely used the Act at the invitation of local and state authorities. However, that is not required and that has not always been the case.

Presidents have used the act repeatedly to fight the Ku Klux Klan, enforce desegregation, and protect African American students. This has been done without approval of the state officials as when in 1962, President John F. Kennedy sent in federal marshals to Mississippi to allow black students to enroll in classes at the University of Mississippi at Oxford.  It has been used repeatedly to quell rioting and looting.

Thus, it could be used by President Trump to quell rioting in these cities.  That does not mean that it would be the right move. In my view, it would not.  The shootings that President Trump is referencing in the killing of young children are the result of criminal acts rather than the rioting or looting.  We have not seen the use of this Act to try to quell a crime wave.  The Act does not allow for much room for judicial review, but the use of the Act to deal with rising crime could present some novel issues for a court.  Nevertheless, the language of the Act favors the President.

There are other possible challenges that are more conventional. Once again, I have great concern over the allegations of citizens being picked up by federal authorities and held for hours before being released without charges. There are serious questions of due process raised in these allegations and their impact on protected free speech activities cannot be denied. There has been considerable violence in Portland from protesters but most are not violent. There should be an investigation into the conduct of the federal officers to confirm the basis for these arrests and how these individuals were treated while in federal custody. It is not per se unlawful to use unmarked cars for arrests. Indeed, it happens all the time. However, local officials and protesters are alleging that people have been effectively snatched off the streets and taken away blindfolded — only to be released hours later. The federal officials deny these allegations and insist that these were individual suspects taken into custody on specific alleged federal crimes. They also note that the officers were clearly marked as police and insist that they told the suspects who they were.  Thus, we have a conflicted record.  That is why we need an independent investigation.

I recently testified in Congress on the Lafayette protest controversy. I identified two primary areas of possible unlawful conduct (including a clearly unjustified attack on a media crew) and suggested a series of inquiries to confirm the facts.  I also stated that I believed that the order to clear the park area to allow for the establishment of a new fence line was lawful and that the federal forces complied with the guidelines for three clear warnings to disperse.  There also is now evidence that appears to refute the widespread claims that the plan was related to the Trump photo op in front of the church.  The point is that many of the initial allegations (widely reported as fact) have not been established and indeed have now been contradicted. That does not mean that unlawful conduct by the federal forces did not occur. I told Congress that I expect the investigation ultimately to narrow to the charge of the police line rather than the plan or authority to clear the area. In reviewing the videotapes of the charging of the line of officers, I believe that it was unlikely unwarranted and unlawful in the use of force.

I expect we will find the same results in the Portland controversy.  Like the D.C. protests, it is clearly untrue to portray the Portland protests are peaceful.  There have been serious injuries to a large number of officers and considerable property damage, including arson.  The police have a right to protect themselves and courts generally allow the use of nonlethal force in such circumstances.  Yet, like most people, I was shocked by the image of an individual being hit in the head with a projectile from the courthouse across the street.  Such excessive use of force can occur in any operation but it is important for us to determine if there is a pattern of such conduct.  Any broad injunctive relief would require more than a few incidents. It would require a pattern of clearly excessive conduct.

I still believe that a massive deployment of troops would be a mistake.  Under our system of federalism, state and local officials have the primary responsibility to address crime in the streets. There is ample reason to criticize the actions, or lack of action, from majors in Seattle, Portland, and Chicago.  However, they are the elected officials given this authority by their voters.  Moreover, marching into these cities with large federal forces would inflame the situation and would not likely impact actual crime through cities like Chicago.

254 thoughts on “Can President Trump Really Send In The Troops To Chicago And Other Cities?”

  1. Oh Lordy. James Comey has the audacity to write another book. This one titled, “Saving Justice, Truth, Transparency and Trust” by James Edgar Comey. Unbelievable, this guy. Justice will be served when Comey gets prosecuted for the laws he broke, the lies he told, the collossal misjudgments that hurt the Rule of Law and the reputation of the FBI. J Edgar Comey and his co-conspirators all behind bars will feel like justice was saved.

    1. The Dept of Justice found that “Comey set a dangerous example for the over 35,000 current FBI employees” by leaking classified information to advance his personal agenda.

      This man is a charlatan. @BryanDeanWright

      —————————————————————————-

      This makes about as much sense as Ted Bundy selling a book on restoring faith in dating. At least people will have something to buy in case there’s another toilet paper shortage next year. @seanmdav

  2. Short version Yes. As Commander In Chief and by declaring martial law. Longer version the military on their own and during off duty time has already taken other actions going back to 2015 and 2016 when 80% of the combat arms voted against Clinton and by guiding the actions of individual citizens into what is now loosely called the Constitutional Centrist Coalition. The second is on going with the assistance of former and retired military who would not take any active action but provide as much support as possible in the use of the psywar phases and the all important weapons of armed with votes supporting as the oath states support and defend The Constitution. Notice in that oath no one is mentioned nor any specific plot of ground or ought else. The Oath is to the Constitution.

    and deos not include any of the forms of socialism.

    De Oppresso Liber

    Constitutionalism vs socialism
    Freedom vs slavery

    1. Mike:

      we are in an insurgency already. it is not clear who is the enemy per se. street thugs yes but they are just soldiers
      my money is on global billionaire financial interests such as but not limited to George Soros

      socialism is besides the point of all this. the choice mike is essentially between a national based mixed economy, which is what Trump champions,
      or a global international mixed economy with increasing forms of multilateral and global government.

      free trade is a trojan horse idea that infected the right with a lot of bad ideas, free trade is just one part of global utopianism

      globalism seeks the free movement of goods (trade) and also capital (money) and also labor (people, migrants)

      national borders are an impediment to all three….
      hence globalism desires the end of borders which requires the end of the nation state as a competent juridical norm in international law.

      the Democrat party is strongly globalist now, because Soros is presently their second largest donor, and he gets what he wants.

      soros wants the end of national borders.

      the end of the nation state as such.

      in his mind there is no capitalism versus socialism, that is nonsense., in his mind all economies are mixed economies.

      understand the deep conflict here that will continue beyond Trump

      you are either for the nation state and borders and the older Westphalian system of sovereignty, or you are for globalism

      BLM and the “white racism” canard are tools of globalism.

      People have to figure out where they stand. war comes.

      1. Drama queen alert. Kurtz comes here to play civil war at lunch everyday. He’ll never be on the ramparts in real life, and fortunately won’t need to be.

        1. I hope not!

          But 15 people shot in Chicago overnight. Since I was on here chatting about the riot that hurt 49 police on friday
          Really, look it up. Some countries which have real civil wars don’t see that many shootings
          How many people were shot in Kabul Afghanistan yesterday?
          Less than Chicago I bet

          I guess we just have anarchy then>? technically speaking?

  3. Did you catch this interview with Obama AG “wingman” Eric Holder where he said this about Trump —->>

    “He’s just trying to set up a situation where he has the ability to delegitimize a vote that he might lose. If he loses, and I expect that he will, then we have to be prepared for what he is going to do in the immediate aftermath of such a loss, and what he’ll do for the time period between the election and the inauguration of the next president. We have to be prepared for things that this nation has never faced before, and unfortunately, that could involve the use of, you know, these forces. Who knows what he’ll do and the people who are in — as part of his administration will support him in doing.”

    Specifically listen to these words Holder said —->>>

    “and what he’ll do for the time period between the election and the inauguration of the next president. We have to be prepared for things that this nation has never faced before…”

    Say what Mr Wingman?! What Holder just said is EXACTLY what the OBAMA/Biden administration did during the transition after Trump beat Hillary Clinton in the election! Holy mackerel this guy is a lying sack of you-know-what. Talk about ‘projection.’

    God help this country if the corrupt fake news media continues to refuse to cover and report on the corruption of the Obama admininstration as it should especially as all the FACTS come to light about what really went on in the last days of Barack Obama’s corrupt presidency. Spying, lying, leaking. Corrupt to the core. But the Fake News Media refuses to report on ANY of it.

    And btw, Holder, there is plenty of evidence that voter fraud is a real issue that swings elections — especially fraud perpetrated by and on behalf of Democrats.

    https://www.breitbart.com/clips/2020/07/21/holder-we-have-to-be-concerned-about-trump-using-paramilitary-forces-to-suppress-vote/

    1. Specifically listen to these words Holder said —->>>

      “and what he’ll do for the time period between the election and the inauguration of the next president. We have to be prepared for things that this nation has never faced before…”

      Sounds familiar, Eric Holder. Why? Because it is what the Obama admin actually did to Trump –abusing the FBI, DOJ, NSA, and the levers of power to spy, lie, leak and attempt to sabotage Trump’s transition and presidency. Unheard of in our history. And yet, the “news media” refuses to report the facts surrounding all of it. Or even ask Joe Biden a single question about it.

      https://www.commentarymagazine.com/articles/eli-lake/michael-flynn-gets-railroaded-by-the-fbi/

      “Flynn did not then know that leaders of the FBI and the Justice Department were out for his head. They suspected he was a Russian agent—despite the fact that a counterintelligence investigation into Flynn launched five months earlier by the FBI had found no evidence for such a claim. Three weeks into the Trump administration, the Flynn hunt bagged its trophy. The newly installed national-security adviser was compelled to quit. The stated rationale was that Flynn had lost the confidence of the new vice president because he had supposedly misled Mike Pence about some phone calls between Flynn and the Russian ambassador to the United States. That those phone calls became public knowledge was almost certainly the result of Obama-administration leaks of highly sensitive intelligence information.

      That was February. In May, the Flynn hunt resumed. Robert Mueller was named a special prosecutor tasked with investigating Russian interference in the 2016 election and possible ties to Donald Trump and his presidential campaign. After months of aggressive targeting, Mueller succeeded in getting Flynn to plead guilty to lying to the FBI—even though the actual FBI agents who had interviewed Flynn assessed that he hadn’t lied at all. Still later, when Flynn’s lawyers sought documents that would clear him of the charge he had lied, the Justice Department fought to keep them secret.

      Finally, in May 2020, another Justice Department investigation was concluded. The Trump administration went to court and moved to drop the federal government’s case. As it did so, it released shocking documents from inside the executive branch that reveal the extent of the injustices done to Flynn. The stunning response from senior Obama officials, including Obama himself, was to condemn the supposed politicization of the Trump Justice Department. Now the Judge hearing Flynn’s case has paused the motion. Michael Flynn is still in limbo.

      This is the story of the railroading of Michael Flynn….”

  4. 1.Small point: the Detroit riots to which Pres. Johnson deployed U.S. army units were in 1967. MLK Jr. was assassinated the following year in 1968.

    2. So it seems the Constitution and Insurrection Act give the Pres. authority to use the “militia” (National Guard) or the Army to quell riots, insurrection and the like. But where does he get the authority to deploy civilian “ law enforcement officers” to arrest citizens for “federal crimes”? What federal crimes? What is the Border Patrol doing in downtown Portland? Apart from the very narrow function of protecting federal property, what’s happening seems unconstitutional and scary.

    1. “I love the smell of napalm in the morning. You know, one time we had a hill bombed, for 12 hours. When it was all over, I walked up. We didn’t find one of ’em, not one stinkin’ dink body. The smell, you know that gasoline smell, the whole hill. Smelled like… victory”

      1. let the populations sort themselves out. law abiding decent and productive citizens MUST leave the major metros

        the major metros are going to be battlegrounds. they already are, perhaps?,

        the countryside is the source of food and water and will be secure in the hands of competent government and law abiding people

        the cities have sold their souls to anarchy. they feel their wild oats, but are easily encircled and besieged.

        if the United States is going to survive, it may come down to war on the major metros as rebel lead zones.,

        Well, the good news is that the military has been practicing MOUT for decades now and has had a lot of practice in doing it, places like Fallujah.

        That will be coming if they don’t step off the crazy train. For sure.
        Fire BLM and lock them up Democrat mayors if you want to stop this before the side of law and order actually gets moving on putting an end to it.
        Because after that it will be too late. Once this is underway in earnest, it will be total war.

        1. “law abiding decent and productive citizens MUST leave the major metros”

          Fight or flight?

          I choose the former.

    2. What is scary is the Democrat party sanctioned violence and anarchy. The federal government has been extremely restrained in their response.

  5. Seth. You are a classic troll who is getting paid by the word to post DNC talking points here and elsewhere.

    Just to make that even worse, you cut and paste entire articles without providing links or accreditation to said articles, as if you are the author.

    And by your own admission, you’re a homophobe.

    1. I am the diva-est diva you could ever think of. I live for painting nails at my nail salon in WeHo, home of all of the fabulous hoes.

      1. You’re losing it, Seth.

        I have no idea who “Gray Anonymous” is, nor do I care.

        Once again Seth. If you’re going to cut and paste articles, provide a link to the article.

        What are you trying to hide by not doing so?

  6. Watch out. There’s been a problem here. Gray anonymous is mad. I think some liberal tried to comment. That caused a lot of trouble. They dont want liberals here. So gray anonymous, is scaring folks away. I guess they got to do that. Cuz this is a a free speech blog.

    1. There is more than one Anon, Patriot.

      There is probably at least 5 Anons, maybe 10 Anons.

      I am goofy 🤪 Anon, not mad 😡 Anon.

  7. https://www.thecollegefix.com/black-law-students-demand-better-access-to-justice-clarence-thomas-course/

    More access to Clarence? The man is only 1 guy. How is he suppose to go from SCOTUS to full time professor? Of course it is a lottery system, you knuckle heads, bc the demand is higher than the supply.

    Maybe he can do meet and greets, on Zoom. The man likes him some serious college football. Ask him about his RV trips all over USA. That is a good one too.

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