WASHINGTON—U.S. Senator Tom Udall (D-N.M.) introduced an amendment to the Fiscal Year 2021 National Defense Authorization Act to restore the long-standing American principle of “posse comitatus” – the principle that the federal government cannot deploy troops to act as a domestic police force absent explicit authorization by Congress. The Udall amendment follows President Trump’s deployment of thousands of National Guard troops from other states into Washington, D.C. to respond to overwhelmingly peaceful protests for racial justice in the aftermath of the killing of George Floyd, and after a military helicopter hovered over a crowd to intimidate protesters on June 1.
“The American people watched in horror as President Trump used the National Guard and National Park Police to clear peaceful protesters from Lafayette Square with tear gas for a photo opportunity, and as their nation’s capital was militarized during largely peaceful protests,” Udall said. “I introduced this amendment because the American military should not be the president’s tool to enforce his dangerous political agenda against his own citizens. Congress must work to prevent any scenario in which our military, an institution sworn to protect and uphold our Constitution and freedom, is instead used as a weapon to suppress American’s First Amendment rights.”
Despite existing U.S. law prohibiting the president’s use of the military for law enforcement purposes without express authorization by statute, Title 32 of the U.S. Code contains a loophole that the president exploited last month.
On June 9, 2020, Attorney General William Barr wrote to D.C. Mayor Muriel Bowser stating that section 502 of Title 32, entitled “Required Drills and Field Exercises,” authorizes the president or the secretary of Defense to assign any duty whatsoever to a state’s National Guard unit. If the president continues to utilize the National Guard in the way suggested by Attorney General Barr, it is more important than ever to close the loophole in Title 32. The president should not be able to use title 32 to have a functional military, in the form of the National Guard, at his disposal domestically to activate whenever and however he wants. Such power is particularly dangerous because the National Guard can operate free from the limits of posse comitatus under Title 32, which means it can perform searches, seizures, arrests, detentions, and other activities the armed forces were never meant to perform in this country.
This loophole is the authority that U.S. Attorney General William Barr said U.S. Secretary of Defense Mark Esper used to deploy National Guard units from other states into D.C.—further claiming that this provision could be used to deploy the National Guard from one state into another state without being subject to the safeguards of the Posse Comitatus Act.
The Udall amendment:
- Protects the principle of “Posse Comitatus.” This amendment prohibits National Guard members from undertaking “search, seizure, arrest or other similar activities” when those National Guard members are acting pursuant to 32 U.S.C. § 502 via an appropriations provision.
- Closes a legal loophole. Under 32 U.S.C. § 502, the President or Secretary of Defense can order National Guard units to perform “operations or missions” without federalizing the National Guard pursuant to Title 10 of the U.S. Code. Section 502 therefore creates a loophole allowing the President to have a military force at his disposal, without being subject to the Posse Comitatus Act and its prohibition against using federal troops for law enforcement purposes.
- Protects state sovereignty. According to Attorney General William Barr, the Secretary of Defense relied on 32 U.S.C. § 502 to deploy National Guard units from other states into D.C., despite the objections of D.C.’s Mayor. But while D.C. is a special case, A.G. Barr’s interpretation would apply to deployment in any state. If this interpretation is allowed to stand, any future President could deploy National Guard troops from one state into another state without the second state’s consent and without the safeguards of the Posse Comitatus Act.