Shattered democracies litter history from Ancient Rome to modern Russia. They fell in deeply polarized times when slim majorities elected a political leader who used the military to oppress his opposition. Since 2016, coups have destroyed five democracies, and in the last year, 42 percent of the world’s democracies lost democratic rights. The Constitution gives Americans powerful tools to save us from this fate. Congress, state governments, and the people must activate these protections now.
Trump considered declaring martial law and sending the National Guard to seize voting machines, claiming his power was “total.” He tried to replace non-partisan military officials with “his generals.” On Jan. 6, 2021, Trump attempted to stay in power illegally, and his supporters stormed the capital. The former president’s inaction delayed the defense of Congress and the peaceful transfer of power. Trump asserts his false claim of a stolen election “justifies the termination of all rules and regulations, even those found in the Constitution…” If elected, he promised to be a “dictator on day one.” He stated his political opponents “live like vermin” and vowed “retribution” against them. He said that undocumented immigrants are “poisoning the blood of our nation” and promised to use the military to concentrate them in camps and deport them. Project 2025 is a fully articulated plan to accomplish all this.
The Framers carefully studied history. They crafted the Constitution as a fortress against an ambitious elected political leader at the head of a cynical faction who would usethe military to seize power and oppress his political opposition. To protect against this, the Framers made it difficult for one person, or even a small group, to direct the military, especially when deployed inside the US. They divided military power between the branches of the Federal Government and the states, creating the federal military and the state militias.
National Guard troops carry riot shields as they assume positions in the vicinity of the U.S. Capitol as the inauguration of President Joe Biden in Washington, D.C., begins on Jan. 20, 2021.
ROBERTO SCHMIDT/AFP via Getty Images
This distribution gave the president command of the military once deployed by Congress. The founders empowered Congress to control military funding, approve presidential appointments of high-level officers, and regulate when the president could use the military. Worrying that a tyrant would take control of the federal government and use the standing army to “oppress the states,” the Framers also gave state governors the command of their militias except in well-defined national emergencies. At the founding, the law required judicial approval of a president’s domestic military deployment.
Since the founding, repeated emergencies caused Congress to continuously expand the president’s military powers, especially via the Insurrection Act Amendments of 1861, which gave the president unchecked authority to use the military inside the United States. What’s more, the militias were renamed the National Guard and unconstitutionally transformed from a check on federal power to a second federal standing army.
The Posse Comitatus Act, which forbids the domestic use of federal troops unless enforcing a clear constitutional or legal command, was intended to protect against domestic presidential military abuse.Yet courts have given the Insurrection Act broad authority to overrule its protections, and Congress has not corrected this mistake. Further, the Supreme Court‘s decision in Trump v. United States gives the president presumptive immunity from prosecution for abuse of his domestic power over the military.
Congress must subordinate the Insurrection Act to the Posse Comitatus Act, return to judicial review of domestic military deployments, and create a legal framework for military protection of Congress from mobs and dictatorial presidents. Congress must also return principal control of state National Guards to governors except in well-defined emergencies.
While these major reforms probably require a more unified government in a less polarized time, there are things we can do now.
Willing governors should meet and issue a statement of constitutional principles asserting their reserved powers under the Militia Clauses and the Posse Comitatus Act and denying their National Guard troops all but the most necessary domestic deployments. This could be bipartisan, as Governor Greg Abbott (R-TX) recently asserted such powers at the border.
State legislatures should convene to pass resolutions warning the public about the potential for military abuse and petitioning Congress for reform. States also should pass laws asserting more control over their National Guards.
President Joe Biden should issue an executive order prohibiting the military from being used against Congress or other elected officials.
Polarization is ripping this nation apart, our norms and traditions are weakening, and constitutional reverence is fading. The Congress, states, and people must act to protect their civil rights and the Constitution itself. These proposed actions are not an appeal from the ballot to the bullet, nor are they an exercise in civil disobedience. They are lawful and necessary steps that a free people must take to preserve the Constitution and secure the blessings of liberty to ourselves and our posterity.
William Orfield is the author of “Violence of Faction and Factional Violence: The Historical Erosion of American Constitutional Protections from the Threat of Military Dictatorship.” Louise Erdrich is a Pulitzer Prize-winning novelist and civil rights activist, and June Carbone is the Robina Professor of Law at the University of Minnesota.
The views expressed in this article are the writers’ own.
