Could the Military Be Used to Quell Civil Unrest Post Election?

Gerrie Schipske

In the aftermath of the protests in Long Beach and elsewhere, people ask What would happen should the November election not be decided on election day because of the surge in vote by mail or if the election is “called” and the other side disagrees and takes to the streets? Could the military be used to enforce the election results or quell the civil unrest?

Recently, the U.S. Congress questioned the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, who told members of Congress that the military will not play a role in November’s election and would not assist in settling any disputes if the results are contested. That is comforting.

But there is a glitch in that response. Let us discuss.

Q. Can the military be called out to settle any results in an election?

A. No. As General Milley responded, the military cannot be called out to handle a disputed election. However, it can be called out under certain circumstances that may be created by a disputed election. Section 4, Article IV, of the Constitution of the United States, states that action for the protection of a State against domestic violence may be taken by the Federal Government only in case the state legislature or the governor (when the legislature cannot be convened) applies for such protection.

It has been the consistent policy of our government to hold the states responsible for the suppression of disorder, and to furnish military aid to a state and to intervene in domestic disturbances of this class only after a state has exhausted all the means at its disposal for quelling the disturbance and has acknowledged itself to be unable to cope with the existing emergency.

Each state has its own means for suppressing disorder, consisting, first, of the police, and other civil authorities, and, second, of its National Guard, The constitutions and statutes of the various states define the responsibilities of state civil officials, and the manner in which, and the authorities under whom, state troops may be employed.

The military codes of the states define the responsibilities and the limitations of authority of the state military commanders when on active duty connected with the suppression of disorder. The provisions of the codes of the various states are not uniform in these respects. The responsibilities and authority of state military commanders are much more limited in some states than in others.

Q. When can the military be called out domestically?

A. The president can use the national guard or the armed forces or both, if he considers it necessary in a state to suppress an “insurrection, domestic violence, unlawful combination, or conspiracy, if it so hinders the execution of the laws of that state and of the U.S., and any part or class of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law, and the constituted authorities of that state are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection or opposes or obstructs the execution of the laws of the U.S. or impedes the course of justice under those laws.”

Q. How can the president call out the military and send them to states to quell domestic riots?

A. He would need a statement in writing from William Barr, head of the Department of Justice or from one or more of the courts of the United States that on account of unlawful obstructions to the authority of the United States it is impracticable by the ordinary course of judicial proceedings to enforce the laws of the United States. He would need to invoke the “1807 Insurrection Act” and issue a proclamation ordering “insurgents to disperse and retire peaceably to their abodes within a limited time.” No military troops would have to be sent. Trump can simply federalize the National Guard.

Q. Was the word “insurrection” taken out of Federal Code in 2006?

A. Congress changed the U.S. Federal Code in 2006 and substituted “insurrection” with “Enforcement of the Laws to Restore Public Order.” In 2008, the next Congress changed the Federal Code heading and replaced it with “insurrection.”

Q. How many times has a U.S. president sent military troops to a state to enforce the law?

A. Historians count 12 times – to quell rioting or to enforce civil rights.

Q. Who can stop the president if he sends troops?

A. The law and court decisions provide the president with latitude in this area. If this happens because of the November election, we will face a serious constitutional crisis.


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