Reinforcing Institutional Integrity in an Election Year: The Role of U.S. Federal Forces

The use of federal forces in instances of civil unrest over the summer, along with suggestions that such forces also may be deployed to prevent voter fraud, has raised questions about the laws, policies, practices, and norms surrounding the use of the military and federal law enforcement in election-related contexts. The United States has a framework of laws and norms intended to safeguard the election process from inappropriate federal interference that rests upon the judgement and commitment of our nation’s leaders to preserve the integrity of our institutions.

Historically, domestic deployments are reserved for rare instances where local law enforcement and state authorities are unable to maintain order on their own, and federal forces are needed in support. In addition, there is a strong norm against domestic deployment of the military for law enforcement purposes, as reflected in the Posse Comitatus Act, although there are explicit exemptions for extreme circumstances. Local, state, and federal crisis response authorities are accustomed to using the National Response Framework to default to the local level and scale up as capacity and capability is requested by local civilian authorities. Recent deployments have prompted a debate on both the justification and legality of using federal forces in the current context.

The Department of Defense (DOD), the Department of Homeland Security (DHS), and the Department of Justice (DOJ) all have assets that a president might deploy domestically. Despite the legal and normative restraints for when and how a president can use these forces, the executive has potential powers to address actual, anticipated, or even alleged threats through the use of force. Traditionally, presidents have exercised restraint in the use of this authority domestically.

There are multiple contexts whereby the authorities, policies, processes, historical precedents, and institutional norms guiding federal force roles could be greatly tested during a presidential election and transition period. Guidelines and guardrails for responding to civil unrest before, during, or immediately after an election, particularly for any deployment that directly or indirectly appears to interfere with the election process, merit urgent examination to ensure the priority is placed on protecting the constitutional rights of all Americans to peacefully assemble and vote. In the context of an election, it is equally important that any deployment of federal forces not undermine public trust and confidence in the fairness and legitimacy of the election.

Legal and Normative Boundaries

In evaluating the appropriate use of federal forces, there are three broad categories of relevant legal authorities to consider: (1) laws that generally direct when federal forces can be deployed; (2) laws that clarify which forces can be deployed and how they will be used to address specific situations; and (3) laws that, through legal authority or normative practice, give leeway for how a president can choose to use federal forces during a time of demonstrated crisis. The powers that fall under this last category include but are not limited to emergency authorities—laws that are written in ways to provide flexibility to the president—and exploitable loopholes in the other two categories’ legal frameworks.

Posse Comitatus (18 U.S.C. §1385) is the foundational check against arbitrary deployment of the military inside the United States. It states that the executive branch cannot use the military to execute laws “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Though often cited as a safeguard against potential violation of civil rights, it is notable that the Posse Comitatus Act was established to address “concerns” about the presence and activities of federal forces protecting Black voters in southern states following the Compromise of 1877 and growing federal government fatigue in implementing Reconstruction provisions. The related norm of not deploying federal forces unless there is a local request is further reflected in law, like the provisions outlining how a state can apply for “Emergency Federal Law Enforcement Assistance” (34 U.S.C. §§50101-50103). There are several exceptions to the prohibition in Posse Comitatus, most notably the Insurrection Act (10 U.S.C. §§ 251-255)which allows the president to federalize the National Guard of any state or deploy active duty military forces and use these forces as necessary “to enforce [the law of the land] or to suppress the rebellion” when it is otherwise “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” This can include protecting federal property or federal law (e.g., civil rights), helping civil authorities manage civil disturbances that threaten the state’s laws or peaceful functioning, or quelling an insurrection that threatens federal laws or rights.

While the language of the statute does not specifically require a state’s request or approval, deployments made over a state’s objection have historically been rare and intended to protect constitutional rights, such as the right to vote. There is also the 1971 Mayday opinion precedent, which established that the president has inherent constitutional authority to use federal forces to ensure that civil demonstrations do not prevent federal employees from getting to their posts and carrying out their assigned government functions.

The last time the Insurrection Act was invoked was in response to the 1992 Los Angeles riots, at the request of the California governor. Prior to that, presidents have invoked the Insurrection Act during the civil rights movement to help enforce desegregation in southern states and provide protection for protestors. It is important to note that normative precedent, vice legality, has greatly contributed to the limited number of times the Insurrection Act has been invoked.

The second category of authorities distinguishes between the different federal forces both in terms of where they can deploy and how they must act once deployed. For instance, National Guard troops could be deployed under State Active Duty, Title 10, or Title 32 orders. Depending on the definition of the mission and the set of orders they are given, certain Posse Comitatus exceptions and rules for the use of force may or may not apply.

State laws specify rules for how the National Guard may be used. When the National Guard is mobilized under state authority, it is under the governor’s command and paid for by the state’s budget. The president can authorize the Guard to respond under federal authority under Title 32 of the U.S. Code and can provide budgetary support for the mobilization while leaving them under the governor’s command. The president can also mobilize the Guard as a federal force under Title 10 of the U.S. Code, which brings the Guard under the command of the president through the secretary of defense, with the federal government paying for the mobilization. Typically, Title 10 mobilization occurs when the president seeks to deploy Guard units outside their home state or to use the Guard contrary to the governor’s preferences. The Posse Comitatus Act does not apply to the National Guard in Title 32 or State Active Duty status, nor does it apply to the U.S. Coast Guard.

DHS entities primarily derive their authorities from the Homeland Security Act and are usually given a narrow remit. Federal Protective Service (FPS) is only authorized to protect federal buildings and the people who work in or visit them. Immigration and Customs Enforcement (ICE) has the mission of “protect[ing] America from cross-border crime and illegal immigration that threaten national security and public safety.” These distinctions are critical because in determining the efficacy or legality of certain deployments, it is essential to consider what each entity is authorized and actually trained to do. This is also reinforced by the established principle that a federal agency is precluded from using appropriated funds to finance activities that lie outside of that agency’s statutory purpose.

It is important to emphasize that under the U.S. Constitution, the federal government has only those authorities specifically enumerated. It is not the case, as in some other countries, that the government can do anything that is not prohibited. Instead, it is prohibited from doing anything that is not specifically authorized.

In addition to needing specific positive authority to act, the government is bound by certain restrictions, like Posse Comitatus. For civilian government, for example, the Hatch Act and DOD Directive 1344.10 restrict the types of political activities in which government employees can participate. This might become relevant during an election-related scenario if it appears that federal forces are being used to advance political objectives rather than to carry out a legitimate mission.

Perhaps the most directly relevant restrictions are the statutory provisions prohibiting the deployment of “any troops or armed men at any place where a general or special election is held.” There is an exception if “such force be necessary to repel armed enemies of the United States,” but this scenario is unlikely. There are also related prohibitions on interfering with voting and on intimidation of voters, though the latter requires that it be “for the purpose of interfering with the right of such other person to vote or to vote as he may choose” (18 U.S.C. §§592-594). Similarly, the deployment of ICE or Customs and Border Protection (CBP) officers, even if deputized to FPS, could intimidate certain voters simply by their presence.

Last, there are certain statutes that provide expanded authorities during a crisis. Some are traditional, routine, and codified authorities like those allowing the secretary of homeland security to deputize other DHS forces to the FPS if a need arises. DHS used this justification to send CBP and ICE officials to Portland—they were all technically authorized to work alongside FPS to assist in their mission of protecting federal property (40 U.S.C. §1315). Others, such as the Emergency Federal Law Enforcement Assistance (34 U.S.C. §50101), envision emergency situations but require that a state or local government request federal assistance.

Despite this legal framework, there could be attempts to identify loopholes or exploit restrictions on the deployment of federal forces. In theory, such efforts could, and should, be checked by one of the other two branches of government. However, during a contentious election and presidential transition period, it cannot be assumed that Congress would be willing to place a definitive check on presidential overreach, and there is precedent for the courts to decide that federal force deployment is a political question, and therefore “nonjusticiable.”

Reinforcing the Responsible Role of Federal Forces

Beyond moral, legal, and normative objections to domestic deployments, it is worth re-emphasizing that most U.S. federal forces, whether DHS or DOD, are not routinely trained for these sorts of missions. States’ National Guard units are best positioned to respond to civil disturbances since they have the closest relationships to local authorities and the doctrinal and cultural aptitude for working in and among their communities, if local law enforcement becomes overwhelmed. They are currently supporting civil authorities in Covid-19 response efforts nationwide and wildfire management in California.

If federal forces are called upon to prepare to deploy to respond to civil unrest over the coming presidential election and transition period, policymakers and DOD and DHS leaders should:

  • Strategically communicate de-escalation” and community protection. All federal forces need to operate with a de-escalation mindset, with a focus on community protection rather than domination or riot control. Training, exercises, doctrine, and equipment should reflect these principles. Armed elements within protests can be carefully and lawfully removed without endangering peaceful protesters. Federal forces must put civilian protection first even as it may increase the risks to which they are exposed.

  • Buttress the role of local law enforcement. Regardless of when or how a president chooses to deploy federal forces, the prevailing assumption should be that local law enforcement is the primary supported element. If federal forces internalize that support mindset, their mission would be both clearer and less prone to risk.

  • Mandate that federal forces are able to be clearly identified. Clearly marked uniforms and name tags are important not only for helping law enforcement authorities quickly identify the various support elements, but also for adding a layer of transparency and trust that could help the overall goal of de-escalating the situation.

  • Echo and reinforce DOD senior officials’ statements about the role of federal forces. DOD leadership has set the tone for the responsible use of federal forces that should be continually reinforced by senior leaders. In June, Secretary of Defense Mark Esper remarked that active duty military forces should only be used as a last resort and only in the most urgent and dire of circumstances, which he does not believe the United States is experiencing currently. In August, Chairman of the Joint Chiefs of Staff General Mark Milley stated that the military will not play a role in November's election and will not help settle any disputes if the results are contested, stressing the principle of an apolitical military. DHS should similarly reinforce the need to be apolitical and professional in exercising its authorities. This is not as deeply ingrained at DHS, but it is absolutely necessary for regaining the trust of the people the Department was established to serve and protect.

Congress will also need to institutionalize more formal and consistently triggered oversight mechanisms, including requiring that information about the threats of violence used to justify deployment is shared with Congress when federal forces are deployed. Such requirements exist under the War Powers Act for all uses of force overseas. As U.S. Naval War College associate professor Dr. Lindsay Cohn has suggested, the same requirements should be applied at home. This becomes crucial during an election year, when a split Congress might not have the political will to provide a necessary check against overreliance on federal force deployments. Legislative oversight will normalize a process of consultation before deployment. If this is a route that Congress does pursue, then it should be done with great care so that these mechanisms only provide appropriate checks against federal force deployments. Congress should avoid implicitly normalizing domestic federal force deployments as routinely regulated options; they should remain notable exceptions.

The deployment of DOD forces domestically in election or transition contexts could challenge the health of civil-military relations. Anger over what DHS assets are deployed where is not just an indication of frustration directed at federal law enforcement entities. These are symptoms of a much larger problem—the erosion of trust and confidence in democratic institutions—that could be exacerbated during a tense presidential election or transition period.

For the sake of preserving the integrity of these institutions, including but not limited to elections, it is imperative that appropriate checks are put in place such that federal force deployments are reserved only for the most dire and legitimate of circumstances, and the rights and safety of all Americans are protected.

This commentary is the first in Institutional Integrity, a new series from the Center for Strategic and International Studies (CSIS) examining the role of DOD and DHS federal forces in U.S. presidential elections and transitions. Forthcoming analysis will provide greater depth on the authorities, norms, policies, and practice of the role of DoD and DHS federal forces in U.S. presidential election and transition contexts. The Institutional Integrity initiative is a partnership between CSIS’s Cooperative Defense Project and Defending Democratic Institutions Project.

Institutional Integrity is made possible by the generous support of the New Ventures Fund.

Melissa Dalton is senior fellow and deputy director with the International Security Program and director of the Cooperative Defense Project at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Suzanne Spaulding is senior adviser for homeland security and director of the Defending Democratic Institutions project at CSIS. Devi Nair is a program manager and research associate with the CSIS International Security Program.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2020 by the Center for Strategic and International Studies. All rights reserved.

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Suzanne Spaulding
Senior Adviser, Homeland Security, International Security Program
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Devi Nair
Associate Director and Associate Fellow, International Security Program

Melissa Dalton