Wonkette Analyzes Trump's Use of The Insurrection Act

[ancianita]

Last edited Wed Jun 3, 2020, 07:03 PM - Edit history (2)

(This is a tl;dr article. Excerpts here are from the middle of the Q/A section.)

Everything You Wanted To Know About 'Can Trump Insurrection Act Us' But Were Correctly Afraid To Ask
by Jamie Lynn Crofts June 3 2020 9:35 am

P. 1

Q: Can the racist-in-chief send in the troops even if the state doesn't want them there?

A: Yup. The Insurrection Act explicitly allows the president to federalize the National Guard and send in military troops to stop illegal shit when

" it so hinders the execution of law of that State and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it opposes or obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of rights, the State is deemed to have denied its citizens equal protection of laws."

P. 2

Usually, the president will try to get approval from a state's governor before sending in the military. (For example, that's one of the reasons W. didn't send troops to New Orleans after Hurricane Katrina.) But that isn't always the case. Remember how the military helped enforce desegregation for the Little Rock Nine, James Meredith enrolling at Ole Miss, and students in Alabama following Brown v. Board of Education? That was done under the Insurrection Act, too...

I guess it's pretty fitting that Trump is basically pulling an actual reverse of the civil rights movement.

P. 3

Q: What can the troops actually do in this situation?

A: Trump probably doesn't know that there are actually rules for what the military can and can't do when acting as support for domestic law enforcement.
Like Naval War College professor and military law expert Lindsay Cohn told Vox,

"Trump can only deploy troops within the US "for certain purposes [...] Technically and legally, he can send them to protect federal property or enforce federal law."

P. 4

When supporting law enforcement here in the states, the military has to follow the Standing Rules for the Use of Force, which are different from and mostly stricter than the Standing Rules of Engagement that the military employs in actual military missions. As explained by Naval Academy Distinguished Military Professor of Leadership & Law Mark Nevitt at Just Security,

" While the rules of force for a military domestic operation will be tailored to the unique mission in coordination with the state law enforcement agency and governing state law, certain core principles remain constant. For example, force is to be used only as a last resort, and the force used should be the minimum necessary. Further, deadly force is to be used only when all lesser means have failed or cannot be reasonably employed."...Using deadly force aggressively to stop looting clearly violates the governing rules for the use of force, principles of de-escalation, and the principles of using only minimum force, as a last resort."

And, as one active duty Air Force officer who flew warplanes in Afghanistan told Alex Wart at Vox,
"These protests aren't combat and shouldn't be viewed through the same prism [as active combat] ..."
So if Trump is hoping for the troops to head into Minneapolis and Manhattan with guns blazing, he is — hopefully — going to be very disappointed.

This got me to thinking that we don't need to be lawyers. Just read, and remember that he'll TRY to give the appearance that HE is the law.

Doesn't mean he's getting away with what he's claiming, though, as some media seem to imply.

As with the Ukrainian phone call, all he wants is the appearance of using the military against Americans. Just the appearance. Unlike the "perfect" Ukrainian call, governors and mayors are preventing him from actually breaking the law under the Insurrection Act.

Second, the military is pushing back on the justifications he might wrongfully use (not that his supporters would know) under the Insurrectionary Act. All other presidents, governors -- even some Republicans are boning up on that act -- will know when he acts illegally, and so will the military.

So Trump can NOT combine his right wing paramilitaries with the US military.
He must just LIE and gaslight Americans into thinking that he's doing it.

Third, the FBI just officially, publicly declared, that there is no evidence of antifa in the protests.
That means there's no legal basis for "national harm" and so MF45 can't make a legal move under the Insurrectionary Act.

Doesn't mean, dumbfucker that he is is, that he won't TRY or LIE about it and confound his cult into remaining loyal.

But even dumbass Americans sense that he's failing. MF45's got all summer to convince them he'll MAGA. And they've got all summer to see which way the wind blows, join other Republicans who've spoken out against him, and jump his ship like rats.

[Thomas Hurt]

1. The Pig will lie and con and try to intimidate to get his way, that doesn't work...

he will push it and try to do something right up to this side of illegal...something he thinks he can get his pet judges to approve.

[ancianita]

2. Oh crap. I forgot about THE JUDGES! Great point!!

[marybourg]

3. Current conditions do not meet those standards.

[ancianita]

4. Trumps or the military's? Just trying to make sure.

[marybourg]

5. The statute's.

[ProfessorGAC]

6. I Agree

The states are neither unable nor unwilling to enforce the law.
On top of that, absent proof of armed insurrection against the federal government, the law applies to the enforcement of federal laws.
Unless these protests intentionally interfere with interstate commerce, there is no standing under that act to invoke it.
Any order to the military to deploy would be an illegal order.
Wonkette has interpreted this wrongly.

[ancianita]

7. However

correct you are, Wonkette hints at Trump's TRYING, which I elaborated.

Maybe you might quote the part of Wonkette's explanation that's the wrong interpretation.

Wonkette isn't denying the rightness of the law or the interpretations of the experts they quoted. They're only questioning the average American's understanding it enough to know, when exposed to Trump's attempt to once again give the appearance that he is above the law, that he isn't.

Not for lack of Democrats trying, has Trump been held to account under law by any agency of government so far? No. He's only been restrained by court decisions; and in some cases he's been supported.

The real problem is whether his actual use of the Insurrection Act itself would hold up in court under these conditions. Let any suit be filed among the 197 federal appointments he's made, or in Washington, DC, and watch its slow progress to the SCOTUS.

Wonkette asks and answers its own question.

It definitely can be challenged, but a victory for the challengers seems very unlikely. Courts are always wary about getting deep into the issues of separation of powers and federalism that a challenge to Trump's use of the Insurrection Act would present. And they're even warier about getting into the nitty gritty details of what's actually permitted under a law like the Insurrection Act, which on its face gives pretty broad powers to the commander-in-chief. Not to mention the fact that the current Supreme Court has showed that it basically agrees with Trump that he has an Article II that lets him do whatever he wants.

And backs it up thus:

Like Nevitt [Naval Academy Distinguished Military Professor of Leadership & Law Mark Nevitt] wrote last week,

In sum, invoking the Insurrection Act remains a rare occurrence in U.S. history, used in the most extraordinary circumstances, such as the complete disregard for enforcing federal civil rights laws or massive unrest in the nation's second largest city. Despite the Insurrection Act's invocation in Los Angeles, it has not been used in 28 years. And it was not invoked in Ferguson, Missouri. Nor was it invoked in Baltimore, Maryland during the riots that occurred in the aftermath of the death of Freddie Gray, who was killed by police officers in 2015. Nor was it invoked in the aftermath of Hurricane Katrina. Finally, it remains unclear whether the invocation of these two provisions are subject to judicial review. Courts have historically been reluctant to wade into these complex federalism and separation of powers waters and will certainly be wary of providing specific guidance.

On this, the statute, I think you've interpreted Wonkette wrongly.

[ProfessorGAC]

8. The First 2 Block Quotes

Answer: Yup! No he can't. They explain the circumstances after saying "Yup". The correct answer is " No, because..." then the act quote.
P.2 uses the Little Rock example as a reason why it cannot be done. Actually, that action defines the reason it can't apply to this situation. There is no willful refusal to uphold the state laws, and no federal laws are in play. In that case, a willful refusal to enforce FEDERAL anti discrimination laws was the cause of invocation. Apples & oranges
So they got that answer wrong.
I don't know how disputing "Yup" and a completely inappropriate example is misinterpretation on my part.

[ancianita]

9. I hear you.

I'm dealing with the TOS requirement that I can't quote more than 4 paragraphs, curtailed by copyright use here on DU.

Wonkette meant their examples to be a qualified "yup," and explained when it was used legally, and when it wasn't used because it wasn't legal. So I hope you'll read above the "Yup." In other words, the tl;dr was more for the Admins than for readers who want the whole article.

Where else W cited its used legally.

Of course, Eisenhower, JFK, and LBJ had legitimate reasons to invoke the Insurrection Act against the will of the states of Arkansas, Mississippi, and Alabama; those states were actively flouting federal law. Here, disregard for civil and human rights for people of color is actually what people are protesting.

And then quoting in my last post, above, what I'd left out about when the statute wasn't invoked. So they clarify through the experts' quotes. For their audience. In the spirit of making them see where Trump can and cannot invoke the statute. So Wonkette interpets the statute correctly. And rightly implies that he'll still try to use it however he wants because of the Constitution's Article II recently interpreted in his favor by SCOTUS. If he tries the defense of economic harms under the Commerce Clause, he might convince the SCOTUS.

I present the just as likely probability that he will try to force military use, and dare any states to take him to SCOTUS, knowing the case that would likely drag out beyond Nov 3. To hold an election in such conditions, he's betting, will suppress the vote, or give him fodder for his claim that it was rigged if Dems win.

The Act itself is on the table. He'll loves the evil dance of "Will I or won't I! Your move, governors!" He'll use it, rightly or wrongly, if he's got time to get away with it.

[ProfessorGAC]

10. We're On The Same Page

I admit I didn't read the link, just your snip. That's on me.
Thanks for the reasoned reply.

[ancianita]

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