A continuation of the previsous post.
- Click here for the article.
As we discussed in our companion piece, a longstanding legal regime protects against use of the military in connection with elections. As an overarching matter, the military’s authority to operate domestically is circumscribed; constitutional and statutory law both establish distinct roles for civilian law enforcement and members of the armed forces. Additional legislation, codified in law and preserved uninterrupted since the mid-19th century, specifically insulates elections from military interference.
Democrats in Congress seem to fear the existing rules aren’t enough: Members of the Senate Armed Services Committee reportedly attempted last month to amend the National Defense Authorization Act to bar the use of any funds to deploy federal troops to seize ballots, voting rolls, voting machines, or other election materials—and to require Congress to be notified of any federal troop deployment to polling places. Republicans on the committee blocked the measure. In mid-June, a group of Democratic senators also introduced a bill to modify § 592 to require a Joint Resolution before the President could invoke the “armed enemies” exception. It has not come up for a vote.
The power to involve the military in U.S. elections could conceivably come from two places: statute and the Constitution. Statutory sources include the Insurrection Act (an exception to the Posse Comitatus Act) and National Guard authorities under Title 32 and Title 10. Constitutional theories include the “protective power” and the Article II power to respond to attacks on the United States. An expansive reading of any of these might support an argument that the laws restricting use of the military, including those specific to elections, can be overcome by relying on these permissive authorities.
Such expansive readings are dubious. Sounder analysis would likely conclude that the military generally cannot be used in elections. But our purpose here is to outline what authorities might be cited in support of such deployments, not to evaluate whether those claims would prevail in court. After all, that’s how it would play out on the ground: A president could deploy troops for elections on the basis of a weak legal theory, the deployments would be challenged as unlawful, parties would litigate, and—likely months later—a court would adjudicate. But in the meantime, the deployment already happened.
Many commentators worry that a president might invoke the Insurrection Act to sidestep other statutory limits. That’s a reasonable concern. But the Insurrection Act is not the only mechanism for a president to deploy the military at or near a polling site in a manner at least arguably consistent with the law. And it may not be the most likely option for a president eager to use the troops. That’s particularly true because the interaction of these legal regimes—one permitting the president’s use of the military, the other restricting it—remains largely untested. A president with a propensity for pushing the limits of executive authority, including with respect to domestic deployments specifically, might be tempted to capitalize on the uncertainty by sending in the troops first and letting legal challenges follow.
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- Click here for a summary from ChatGPT.
Central Thesis
The greatest danger is not that the law clearly authorizes military involvement in elections, but that uncertain legal authorities could be exploited before courts have time to intervene.
Even if a court eventually ruled a deployment unlawful, elections occur on a single day. Litigation would almost certainly take weeks or months.
