Sens. Elizabeth Warren (D-Mass.) and Richard Blumenthal (D-Conn.) urged President Joe Biden and Defense Secretary Lloyd Austin to take action in their last weeks in office to try to prevent incoming President Donald Trump from siccing the military on the U.S. public.
In a letter dated Sunday, the pair emphasized that failing to provide legal guidance could lead to turmoil within the armed forces.
Trump has said that he would order the U.S. military to assist Immigration and Customs Enforcement officers in his plans to deport immigrants lacking permanent legal status — an unprecedented action that critics regard as an affront to personal liberties. He’s also discussed using the armed forces against perceived enemies, suggesting before the Nov. 5 election that the military should be deployed against “radical-left lunatics” if necessary.
The Democratic senators suggested that Biden issue a policy directive outlining limitations on the president’s authority to use the military to enforce civilian law.
There are already rules in place. A post-Reconstruction law, the 1878 Posse Comitatus Act, states that use of any part of the armed forces “to execute the laws” is punishable by a fine or imprisonment, except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”
But the Insurrection Act provides a loophole of sorts.
Under that law, the president can deploy the military against Americans in certain emergency situations that are not fully explained; the Brennan Center for Justice, a progressive nonprofit, called the wording “dangerously vague.”
Trump has suggested that he would immediately declare a national emergency over what he terms an “invasion” by immigrants, paving the way for him to mobilize the military on U.S. soil.
In their letter, Warren and Blumenthal said the policy directive should state that use of the Insurrection Act is limited to very narrow circumstances in which state or local authorities are “overwhelmed,” and “that the President must consult with Congress to the maximum extent practicable” before ordering the military to take action. Troops would also need to comply with bedrock principles of the criminal justice system such as the writ of habeas corpus, or a person’s right to be brought to court for a formal ruling on their detention, the pair said.
The senators urged Biden and Austin to act swiftly in light of the Supreme Court’s recent presidential immunity decision, which significantly expanded a president’s ability to act without fear of later being prosecuted.
They pointed to unresolved questions about the real-world implications of that decision.
“While the president may be immune, legal scholars have said this decision should not have any impact on service members’ obligation to reject unlawful orders,” Warren and Blumenthal wrote.
“Given the disagreement amongst scholars on the serious implications of the recent Supreme Court decision, it is reasonable to assume that service members, other DoD [Department of Defense] personnel, and the broader military community may not be aware of or fully understand their rights and responsibilities,” they said.
“If unaddressed, any ambiguity on the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to utilize the military in such dangerous and unprecedented ways, may prove to be devastating.”
Pentagon officials have already started discussing how to respond to a situation in which Trump issues a controversial order, CNN reported last month.
“Troops are compelled by law to disobey unlawful orders,” one defense official told the outlet. “But the question is what happens then – do we see resignations from senior military leaders? Or would they view that as abandoning their people?”
