Protests, Power, and the President: What the Law Really Says
Can the Military Be Used to Respond to Protests in the U.S.?
On June 7, President Trump signed a memorandum addressed to the Secretary of Defense authorizing the deployment of at least 2,000 National Guard troops—and potentially unlimited numbers of federal troops—to protect federal immigration officers and property. The stated goal was to ensure the safety of government personnel and buildings amid unrest amid the anti-immigration protests in Los Angeles.
But the memo did something unusual: it extended military protection not only to locations where violence was occurring, but to places where protests were simply "likely to occur." Importantly, it referred broadly to “protests,” not just violent riots or unlawful actions.
That distinction carries significant constitutional implications.
What Laws Govern Military Use Inside the U.S.?
The Posse Comitatus Act (1878)
Prohibits the use of the U.S. Army and Air Force for domestic law enforcement unless explicitly authorized by Congress or the Constitution.
This law protects against military involvement in routine policing, including protests.
It does not apply to the National Guard under state control, or to certain federalized uses permitted by the Insurrection Act or related laws.
The Insurrection Act (10 U.S.C. §§ 251–255)
Allows the president to deploy military forces domestically to suppress insurrection, enforce federal law when obstructed, or protect civil rights when states fail to do so.
Historically used in rare and urgent cases—such as enforcing school desegregation in 1957 or responding to major riots in 1992.
Trump’s memo did not invoke the Insurrection Act. Instead, it used Title 10 of the US Code (Section 12406), a statute allowing the president to federalize the National Guard under certain circumstances, including to address threats to law enforcement or federal authority.
What Makes This Memo Legally and Constitutionally Troubling?
1. Applies Broadly to “Protests”
The memo doesn’t limit itself to riots, violence, or unlawful activity. It explicitly authorizes military deployment to locations where “protests” are occurring or expected—without clarifying whether those protests are peaceful or disruptive.
This language is deeply concerning because:
Protests are protected by the First Amendment, even when critical of the government or law enforcement.
Authorizing troop deployments based solely on the existence or prediction of protest risks chilling lawful dissent and peaceful assembly.
It equates anticipated political expression with a potential threat to public order.
2. Allows Preemptive Deployment
The memo authorizes force before anything has happened—based only on “threat assessments” and expected unrest. This kind of preemptive action is extremely rare and raises concerns about prior restraint, a constitutional doctrine that forbids the government from restricting expression before it occurs.
3. No Limit on Troop Numbers and Potentially No Time Limit
The memo sets a minimum of 2,000 troops but no maximum and grants the Secretary of Defense discretion to deploy any number of regular Armed Forces. This open-ended language gives broad authority with no external oversight. The memo also authorizes the deployment for 60 days, unless the Secretary of Defense in his sole discretion determines that additional time is needed.
4. Removes State Control of National Guard
By federalizing the Guard, the memo bypasses state authority and centralizes control under the president and the Department of Defense. While legal in some circumstances, this raises federalism concerns—especially when states have not requested assistance, as is the case with California.
Could It Be Challenged?
Yes. If the military were used to suppress peaceful protest or demonstrators were injured or detained, a court challenge could be brought on several grounds:
First Amendment violations (freedom of speech and assembly)
Fourth and Fifth Amendment concerns (unlawful searches, seizures, or lack of due process)
Overreach of executive power under the applicable statutes
Legal standing would likely exist for individuals harmed by enforcement actions or organizations whose rights or missions were affected.
Has the Military Been Used Before for Domestic Law Enforcement?
Yes—but typically in extreme or well-documented emergencies:
1957 – Little Rock: Eisenhower sent troops to enforce desegregation when state officials resisted federal court orders. (Insurrection Act)
1967 – Detroit: Troops responded after days of rioting overwhelmed local resources. (Insurrection Act)
1992 – Los Angeles: National Guard and Marines helped restore order after widespread unrest. (Insurrection Act)
1970 – Kent State: Ohio National Guard (under state authority) fatally shot student protesters. No federal action—but a tragic reminder of the dangers of military involvement.
In all these cases, troops were used after unrest broke out—not in advance based on protest predictions.
Why It Matters
The federal government has a legitimate interest in protecting its personnel and property. But authorizing military force in response to “protests”—especially those that are peaceful or merely anticipated—raises serious constitutional and democratic concerns.
The right to protest is a cornerstone of American democracy. While public safety is critical, it must be balanced with civil liberties. When military force is authorized without clear limits, oversight, or evidence of lawlessness, the risk of overreach and suppression of dissent becomes very real.
Final Thought
Presidential authority to deploy the military exists—but it must be exercised with precision, restraint, and full respect for the Constitution. In this case, the lack of clear limits and the broad application to protests—not violence, not insurrection, but protests—makes this memorandum a troubling example of how legal tools can potentially be stretched beyond their intended bounds.
