by
Zhang
Shuo/China
News
Service/VCG
via
Getty
Images)
Sending
the
military
to
engage
in
domestic
law
enforcement
operations
is,
to
be
clear,
not
something
the
White
House
just
gets
to
do
because
Donald
Trump
hates
Chicago.
While
America
has
long
hoped
to
stop
the
scourge
of
deep
dish
pizza
from
infecting
the
nation’s
strip
malls,
the
Posse
Comitatus
Act
of
1878
protects
Pizzeria
Uno
from
federal
drone
attacks.
That
law
dictates
—
as
amended
—
“Whoever,
except
in
cases
and
under
circumstances
expressly
authorized
by
the
Constitution
or
Act
of
Congress,
willfully
uses
any
part
of
the
Army,
the
Navy,
the
Marine
Corps,
the
Air
Force,
or
the
Space
Force
as
a
posse
comitatus
or
otherwise
to
execute
the
laws
shall
be
fined
under
this
title
or
imprisoned
not
more
than
two
years,
or
both.”
Trump
v.
United
States
has,
probably,
rendered
this
law
constitutionally
unenforceable.
Since
the
conservative
justices
proactively
resolved
the
president
of
criminal
liability
for
willfully
using
Navy
SEALs
to
murder
his
political
rivals,
it’s
hard
to
believe
they’d
stop
the
military
from
being
deployed
against
average
citizens.
Still,
it
would
be
interesting
to
see
what
the
Space
Force
nerds
think
they
could
do.
But
Trump
v.
United
States
aside,
the
executive
branch
isn’t
entirely
without
legal
recourse.
The
Insurrection
Act
of
1807
provides
an
exception
to
this
restriction,
allowing
the
president
the
power
to
call
upon
the
military
under
defined,
limited
circumstances.
It’s
an
incredibly
rare
and
radical
executive
action
that
is
not
tripped
by
an
inflatable
frog
costume
twerking
outside
an
ICE
facility.
Nonetheless,
Donald
Trump
is
leaking
to
anyone
willing
to
reprint
it
that
he’s
very
“close”
to
invoking
the
Insurrection
Act.
The
media
has
an
obligation
to
the
public
to
stress
how
abnormal
and
legally
unjustified
an
Insurrection
Act
occupation
of
America’s
cities
would
be.
Unfortunately,
we
get
this
instead.
That’s
Sarah
Isgur,
the
former
spokesperson
for
the
Jeff
Sessions
DOJ,
explaining
that
invoking
the
Insurrection
Act
is
totally
normal.
Despite
the
thrust
of
the
retweeting
account,
Isgur
actually
IS
NOT
saying
that
the
Insurrection
Act
is
cool.
The
MAGA
fans
clicking
to
see
Stephanopoulos
look
“like
a
fool,”
probably
didn’t
stick
around
for
her
conclusion
that
the
Insurrection
Act
should
have
been
amended
years
ago
to
set
stricter
standards.
An
interesting
academic
question
maybe,
but
deeply
misleading.
Whether
the
Insurrection
Act
could
stand
a
rewrite
doesn’t
change
the
fact
that
Donald
Trump
sending
troops
into
Illinois
or
Oregon
over
the
objections
of
their
governors
is
illegal
right
now!
“Nearly
half
of
U.S.
presidents
have
invoked
the
Insurrection
Act
during
their
terms,”
the
Harvard
Law-educated
Isgur
explains
falsely.
In
total,
16
of
the
45
presidents
(remembering
that
Trump
47
and
Cleveland
24
were
performing
encore
acts)
have
invoked
the
Insurrection
Act,
coming
in
at
around
35
percent,
rendering
“nearly
half”
an
extreme
act
of
adverbial
violence
upon
the
both
math
and
the
English
language.
George
Stephanopolous,
interjects
to
add
“not
over
the
objection
of
governors.”
Stephanopolous,
who
recently
saw
his
network
settle
a
defamation
claim
for
$15
million
after
he
said
Trump
was
civilly
liable
for
raping
E.
Jean
Carroll
as
opposed
to
civilly
liable
for
calling
Carroll
a
liar
when
she
said
he
raped
her,
clearly
understands
the
value
of
being
hypertechnically
correct.
Isgur,
however,
pushes
back
“Absolutely!
Think
about
Eisenhower
at
Little
Rock.”
And
while
Ike
did
act
over
the
objections
of
the
Arkansas
governor,
when
she’s
arguing
that
it’s
totally
normal
to
use
the
Insurrection
Act
this
way,
“remember
they
did
it
once
70
years
ago,”
is
not
the
flex
she
thinks
it
is.
For
what
it’s
worth,
Kennedy
also
slightly
more
recently
called
upon
the
Act
over
a
state
government’s
objections.
It
has
not
happened
since.
To
put
in
perspective
how
long
ago
that
was,
when
it
last
happened
over
a
governor’s
objection,
people
heard
the
name
Kennedy
and
did
not
think
“brainworm-addled
lunatic.”
The
Eisenhower
comparison
is
also
inapposite.
The
Insurrection
Act
authorizes
three
exceptions
to
the
bar
on
deploying
an
occupying
army
within
the
United
States.
First,
as
Stephanopolous
flags,
a
request
from
state
government.
Second,
where
people
are
deprived
of
constitutionally
secured
rights
that
the
state
fails
or
refuses
to
protect
—
the
justification
Ike
and
JFK
operated
under.
And
third,
where
it
is
“impracticable
to
enforce
the
law.”
Trump
is,
at
best,
aiming
for
the
final
justification
by
claiming
that
Portland
is
on
fire,
instead
of
a
hipster
enclave
far
too
obsessed
with
Pinot
Noir.
But
it’s
still
not
sufficient
to
say,
“protesting
furries
have
made
our
ICE
officers
feel
bad.”
The
text
of
the
relevant
statute
contextualizes
“impracticable
to
enforce
the
law”
as
an
inability
to
operate
“by
the
ordinary
course
of
judicial
proceedings.”
There
is
no
claim
that
Trump
can’t
enforce
immigration
laws
and
process
the
folks
ICE
rounds
up
through
ordinary
legal
process.
The
fact
that
he’s
losing
cases
doesn’t
transform
them
from
“the
ordinary
course
of
judicial
proceedings.”
Oh,
and
if
Trump
were
to
invoke
the
Act
anyway,
the
real
culprit,
she
explains,
is
Joe
Biden
for
not
fixing
this
first.
Deferring
responsibility,
for
the
win!
Sure
it’s
been
on
the
books
as
illegal
since
the
19th
century,
but
this
isn’t
Trump’s
fault
for
doing
it,
it’s
on
the
Democrats
who
didn’t
make
it
MORE
CLEAR
that
it’s
illegal!
There
is
no
statutory
justification
for
invoking
the
Insurrection
Act
right
now.
Full
stop.
It’s
not
“a
close
question,”
or
“a
debate,”
or
“a
reason
to
revisit
the
language,”
it’s
just
not
legal
under
any
serious
reading
of
the
text.
When
historians
collect
the
receipts,
they’re
not
going
to
distinguish
the
martial
law
cheerleaders
from
the
folks
staking
out
the
“this
may
not
be
a
good
idea,
but
it’s
legal”
position.
If
anything,
the
latter
is
more
dangerous
because
the
fate
of
the
Republic
isn’t
turning
on
the
hardcore
partisans,
but
will
lean
on
the
sort
of
people
Isgur’s
telling
to
shrug
and
blame
Biden.
These
“I’m
personally
not
happy,
but…”
talking
points
might
earn
a
social
pardon
at
a
DC
cocktail
party,
but
in
the
final
equation,
it’s
still
sanewashing
the
idea
that
the
White
House
can
legally
deploy
troops
to
occupy
American
cities.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.