Don’t Use the Military as an Extension of Law Enforcement

Presidents have called in National Guard troops for domestic missions at least ten times since World War II, starting in 1794, when Western Pennsylvanians’ protests on federal liquor taxes prompted Secretary of War Henry Knox to ask governors of Virginia, Maryland, New Jersey, and Pennsylvania for troops.

The Trump administration’s dispatch of troops to the Democratic cities of Los Angeles, Washington, D.C., and Memphis have, for now, been stopped by lawsuits over sending Guard soldiers there, as well as to Chicago, Portland, California, and Illinois. Multiple federal district and appellate courts halted, or ruled against, the plans.

Now, the U.S. Supreme Court is weighing whether to respond to an emergency appeal asking for permission to deploy troops in Chicago. Trump may be using the “Insurrection Act” as a move to avoid these legal cases  slowing him down, suggests an article in the Christian Science Monitor.

 The Western Pennsylvanians’ protests sent 12,950 soldiers to “suppress the insurrection and enforce the laws of the Union.” By the time the men reached Pittsburgh, the rebellion had subsided. Pres. Woodrow Wilson also called for domestic troops to quell Pancho Villa’s 1916 border raids.

Circumstances prompting these “federalizations” have varied dramatically. In the 1930s, several states used National Guards to stop the New Deal’s National Industrial Recovery Act. In the 1950s and 1960s troops were called to Little Rock, Ark., initially to stop Black student enrollments; later, to stop riots when Black students did enroll.

In 1962, James Meredith was refused enrollment in the University of Mississippi at Oxford. Then-Pres. Kennedy federalized the Mississippi National Guard, “should any be needed to preserve law and order while United States marshals carried out the orders of the court.”

ICE protests have prompted Trump to call on the Guard, though as of June 2025 the Insurrection Act had not been passed. Enacted in 1807, the authorization, though vague, allows the president deploy, i.e., “federalize,” state National Guard units in states. Requirements include: response to a request by a state’s governing body; address an ‘insurrection’ in any state preventing federal law enforcement; address actions that deprive constitutional rights.

Using the Insurrection authorization gets around the Posse Comitatus Act, a Civil War law that restricts the military from being used as law enforcement; the Insurrection Act allows the president to use the military for law enforcement.

The military can be called up for, say, a disaster, but they are not law enforcement. They cannot arrest.  Callups can be a response to a request by a state’s governing body to address an insurrection preventing enforcement of a federal law, or action that “results in the deprivation of constitutional rights.” However, these definitions of “civil disorder, insurrection, or rebellion” are vague. 

President Trump has threatened to invoke the act twice; first, during the 2020 George Floyd protests; in  2025,  ICE protests in Los Angeles. Both times he was convinced not to do so.

“That is a use of the military that has never been part of the way we think about ourselves,” according to Harvard Kennedy School’s Juliette Kayyem. “What we saw with the National Guard in D.C. illustrated this. An insurrection means state government can’t work; that’s the way it is defined in the Insurrection Act. And yet federal troops were deployed, and what did they do? They picked up trash. It is so expensive to deploy the military in this way. This expansive definition of an insurrection could extend to the mid-term elections, where this administration can deploy the military to cities simply to intimidate voting.” 

There’s a reason why the U.S. Constitution’s structure divides civilian authorities and military authorities.  “We have a president who wants to use the military as an extension of law enforcement. That is a significant change. And we should be wary about this sort of casualness in which he disrupts that constitutional order.”

On Saturday, Nov. 15, and again on Sunday, Nov. 16, federal border patrol agents in Charlotte arrested people in public spaces “while protesters marched, some businesses closed, and activists worked to document what was happening,” according to the Charlotte Observer. News accounts report that supermarkets and grocery stores carrying international foodstuffs have been a “frequent target of Border Patrol agents this weekend.”

The Observer further reported, “Sunday, two men were arrested in the parking lot of Dany’s Supermarket off The Plaza after they tried using an ATM there, bystanders told the Observer. An Observer reporter saw agents arrest one of the men and put him in the back of a black Ford Expedition.”

An editorial writer observed, “With every smashed window, every sneer at due process, every federal agent’s smirk at those who are horrified by it all, Donald Trump continues to lose.”

Betty Joyce Nash reported for the Greensboro News & Record and the Hendersonville Times-News before moving to Virginia where she worked as an economics writer for the Federal Reserve Bank of Richmond. She co-edited Lock & Load: Armed Fiction, an anthology of literary short stories that probe Americans' complicated relationship to firearms. (University of New Mexico Press, 2017.)