Introducing a new series on the limitations, drawbacks, and dangers of domestic deployments, from Lawfare and Protect Democracy
Editor’s note: This essay is part of a series on the limitations, drawbacks, and dangers of domestic deployments, from Lawfare and Protect Democracy.
The primary mission of the U.S. military is to defend the country from foreign threats. More and more often, however, the military is being deployed on U.S. soil as a one-size-fits-all tool for solving domestic problems that often have little to do with national security. In the words of Elaine McCusker, a senior fellow at the American Enterprise Institute and former high-ranking official at the Department of Defense, some state and federal officials have come to view the military as the “easy button,” with its ample funding and ready supply of manpower.
Though domestic deployment of the military may at times appear “easy,” it is very often illegal, impractical, or inadvisable.
A new series from Lawfare, in partnership with my organization, Protect Democracy, explains the many limitations, drawbacks, and dangers of deploying the military on U.S. soil. A range of authors—including academics, lawyers, veterans, and former Defense Department officials—will discuss the legal limits on the domestic use of the military, their sensible origins, and the consequences of more deeply involving the military in domestic affairs.
Although the series concerns primarily federal deployments, it is worth noting that state governors are the commanders in chief of their state National Guard units and that governors and presidents of both major political parties have been driving the increasing domestic use of the military. At the state level, governors have asked members of the National Guard to perform a range of tasks that stretch any reasonable interpretation of their core function—such as teaching in high schools, guarding prisons, and policing the New York City subway system. At the federal level, the military has increasingly been viewed as a resource for domestic functions, such as supporting policing efforts at the southern border, a mission that recently retired National Guard Bureau Chief Gen. Daniel Hokanson said had “no military training value.” Even more concerningly, prominent political figures have proposed that the military be used as a domestic police force, to crack down on campus protests, or to detain and deport millions of immigrants living within the United States.
There are certainly some appropriate domestic uses of the military. The National Guard, in particular, has traditionally served some internal functions, such as responding to human-made and natural disasters. However, every branch of the military is made up of men and women whose principal training is oriented toward combat against foreign enemies. Their service is a vital and limited resource—it should be called upon only in emergencies for which members of the military are appropriately trained, equipped, and prepared; it should not detract from their ability to defend the nation overseas; and it should never come at the expense of constitutional rights or the public trust.
Though the increase in domestic deployments is an issue affecting all Americans, this series may be of particular interest to those in positions of authority—such as lawyers, advisers, and military officials—who are tasked with evaluating or executing a domestic deployment. They are the ones best situated to raise concerns, suggest limitations, and provide alternative solutions.
In doing so, perhaps the first thing they should consider is the legal and regulatory framework. In the opening piece of the series, Laura A. Dickinson, a professor at George Washington University Law School, explains the Insurrection Act, the primary authority that the president can invoke to deploy the military on U.S. soil. Dickinson describes not only the act’s requirements but also the constitutional and practical considerations that have led lawyers within the executive branch to adopt a narrow reading of the authority it confers. Following that piece, former Defense Department attorney and current law professor at the University of Houston Law Center Chris Mirasola will explain another legal limit that is often overlooked: how appropriations law may constrain executive action and force difficult trade-offs. Instructions from Congress concerning military spending could be a surprisingly important consideration in determining whether a given domestic deployment is feasible or appropriate.
Equally important, however, are the practical consequences of domestic deployments. As Elaine McCusker’s forthcoming piece will explain, expanding the uses of the military at home requires resources; even if those resources can legally be reallocated, they will have to be diverted from other Defense Department priorities and may come at a cost to our national security. And whether that cost is worth paying is partly a function of whether the military is well suited to accomplish the domestic mission. Mark Nevitt, a professor at the Emory University School of Law and a former tactical jet aviator and attorney (JAG) in the U.S. Navy, will tie together both legal and practical considerations in a piece about how military regulations—guided by important norms of military conduct—constrain the uses of the military for domestic missions.
Lastly, a piece by Lindsay P. Cohn, a professor of national security affairs at the U.S. Naval War College, will talk about how domestic deployments may affect public trust in the military and what can be done to avoid damaging the important relationship between the military and the U.S. public.
As the series is released, we may include additional perspectives and will update this introduction accordingly.
Ultimately, each of these pieces should serve as a caution to use military resources with wisdom and restraint. The role of commander in chief is perhaps the president’s weightiest responsibility. For the sake of both the country and the members of the armed forces, it is a power that should never be exercised lightly and particularly not when it puts the trust and safety of the American public at risk.
– Alex Tausanovitch is a policy advocate at Protect Democracy, where he does research, writing and advocacy focused on strengthening democratic institutions. His work has been cited in media outlets including the New York Times, the Washington Post, NBC News, the Guardian, NPR, and others. Alex is a graduate of American University and Yale Law School, and previously served as a government attorney and as a senior fellow at a DC think tank. Published courtesy of Lawfare.
