President Trump may have legal authority to deploy U.S. troops in Chicago

National Guardsmen patrol Baltimore, 1968 (Credit: Baltimore Sun)

Washington, Jan. 25 — President Trump tweeted yesterday that he will “send in the Feds” if Chicago politicians don’t address their city’s gun violence epidemic.

The question that immediately arises: Does President Trump have the legal authority to send federal troops to American cities?

Perhaps surprisingly, yes.

Starting with the Constitution, Art. I, § 8, cl. 15 authorizes Congress “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

Under this authority, Congress has over time enacted a number of provisions aimed at (cautiously) expanding the President’s executive power for that purpose.

Generally, the Posse Comitatus Act prohibits the domestic use of military forces.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air 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. 18 U.S.C. § 1385

However, a series of laws known as the Insurrection Act (10 U.S.C. §§ 331–335) have been invoked by past Presidents to use U.S. troops “to put down lawlessness, insurrection, and rebellion.”

Some history.

President Lincoln was sworn in on March 4, 1861. Just over a month later, Confederate forces attacked Fort Sumter in South Carolina, to which Lincoln responded by issuing a proclamation to muster 75,000 federal troops (which the Supreme Court later ruled was the official beginning of the Civil War).

President Abraham Lincoln at Antietam

At Lincoln’s urging, Congress then passed the Suppression of the Rebellion against and Resistance to laws of the United States Act of 1861, now codified at 10 U.S.C. § 332, to expand the President’s authority to deploy troops to suppress insurrection and enforce law.

Thus, Section 332 provided the legal basis for launching the Civil War.

More recently, in 1957 President Dwight Eisenhower relied on the Insurrection Act when he used U.S. troops to desegregate public schools in the South.

That year, Governor Orval Faubus ignored federal law and tried to use the Arkansas National Guard t0 intimidate and block desegregation efforts in Little Rock.

Under orders from Gov. Orval Faubus, in 1957 the Arkansas National Guard Blocks African-American students from entering Little Rock High School.

In response Eisenhower issued Executive Order 10730. Assistance for Removal of an Obstruction of Justice Within the State of Arkansas, which federalized the Arkansas Guard and ordered the Army’s 101st Airborne to protect students during the transition, where they remained for the rest of the school year.

NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and Statutes of the United States, including Chapter 15 of Title 10, particularly sections 332, 333 and 334 thereof … of the United States Code, It is hereby ordered as follows:
[Sec. 2] The Secretary of Defense is authorized and directed to take all appropriate steps … for the removal of obstruction of justice in the State of Arkansas with respect to matters relating to enrollment and attendance at public schools in the Little Rock School District, Little Rock, Arkansas.

A decade later nationwide riots broke out after the assassination of Martin Luther King, Jr. on April 4, 1968.

President Lyndon Johnson responded to the widespread chaos and violence by invoking the Insurrection Act authority.

President Lyndon B. Johnson and Joe Califano chart riot outbreaks in Washington, DC. (March 5, 1968)

On April 9, 1968, Johnson issued Proclamation № 3841, which “commanded all persons engaged in violence in and about the City of Chicago and obstructing the enforcement of the laws to cease and desist therefrom and to disperse forthwith.”

During this time period, President Johnson issued a number of similar “proclamations to disperse” (10 U.S.C. § 334) before deploying federal troops to the effected cities.

The Trump Administration may also point to the authority vested in Article IV, § 4 of the Constitution, which states, “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them … on applicaton of the executive … against domestic violence.”

Even though under Art. IV Illinois Governor Bruce Rauner may ultimately request federal intervention in Chicago, Section 332 makes clear that the President can mobilize troops on his own without waiting for such a request.

Legal authority aside, the question of whether mobilizing federal troops to descend on Chicago is a reasonable plan remains an altogether separate issue.

Trump’s “get tough” approach comes on the heels of a scathing Department of Justice report that found the Chicago Police Department has for years engaged in a pattern of civil rights abuses.

Since 2004, Illinois taxpayers have already shelled out a mind-boggling $642 million for police-related lawsuits, with hundreds of suits still pending.

Given the already volatile situation in Chicago, one has to hope our elected officials will come together for real solutions, rather than further dividing the country. A ramping up of violence is the last thing we need.


Tyson Manker is a former U.S. Marine combat veteran, licensed attorney, and college law professor.