By Professor Mark P. Nevitt

(Just Security | May 29, 2020) In the aftermath of the tragic killing of George Floyd by a Minneapolis police officer, riots and unrest have been spreading throughout the city of Minneapolis and the country. The Minnesota National Guard has been activated by Minnesota Governor Timothy Walz. These Minnesota National Guard members report to the governor and can actively take part in law enforcement functions, which they are doing.

But now, President Donald Trump is involved too.

The president tweeted Thursday night that he 

can’t stand back & watch this [the riots] happen to a great city, Minneapolis. A total lack of leadership. Either the Radical Left Mayor, Jacob Frey, get his act together and bring the city under control, or I will send in the National Guard and get the job done right.

Further, Trump stated that he “just spoke to Governor Walz and told him that the Military is with him all the way. Any difficult and we will assume control but, when the looting starts the shooting starts . . . ”

Beyond their deeply troubling moral messaging, there are two key legal issues associated with these remarkable tweets (outside of Trump’s showdown with Twitter, which placed a warning on the tweet, saying it glorified violence):

  • Under what conditions can the president order the military to respond to Minneapolis?
  • What are the military’s rules for the use of force—i.e. does looting justify shooting?

Can Trump Use the Military to Respond to Minneapolis? 

Yes, but this is subject to certain, critical legal restrictions under both the Posse Comitatus Act and the Insurrection Act. The president is, of course, the commander-in-chief of the Armed Forces, but he lacks the authority to use the military in any manner that he pleases. That authority is constrained by Congress and the courts.

Under the 1878 Posse Comitatus Act, Congress has limited the president’s ability to use the federal (title 10) military in domestic law enforcement operations such as searches, seizures, and arrests. A criminal statute, the Posse Comitatus Act makes it unlawful for the Army or Air Force to “execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” So, the president cannot simply call in federal military forces or nationalize the Minnesota National Guard to quell the civil disturbance in Minneapolis without pointing to a Posse Comitatus Act exception …

Read the full article.

Mark P. Nevitt is an Associate Professor of the College of Law and an SPL Afiliated Faculty member.

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