The Uneasy Relationship Between the Pandemic, the Military and the Law

Academic Incubator

The Cipher Brief’s Academic Incubator program partners with colleges and Universities across the country to bring you the voices of the next generation of national security leaders. 

Jakob R. Gibson is a junior at Westminster College, in Fulton, MO. Tobias T. Gibson is the John Langton Professor of Legal Studies and Political Science. He also is the Security Studies Program Director.

ACADEMIC INCUBATOR — As COVID-19 spreads across the country, seemingly unabated, states and cities are beginning to enforce limited shutdown. Kentucky has renewed virtual learning. St. Louis County, in Missouri, has limited restaurants and other businesses—and has a mask mandate. California has a curfew for much of the state, and individual cities and counties have taken further action. The five Bay Area counties have limited activities such as contact sports.  The ban on practice and play has no exceptions, leading to out of state displacement for the San Francisco 49ers and the Stanford Cardinal football teams.

Across the country, states are also seeking federal help to combat the virus and mitigate its damage. Air Force nurses have deployed in North Dakota, the state with the highest infection rate per capita. Missouri, reportedly, is also considering deploying the National Guard. The president extended federal support for National Guard deployments in 44 states—and added Iowa —for pandemic related purposes.

The purpose of this article is to discuss the legal framework of domestic military involvement in this pandemic. This becomes important, because there is much public misunderstanding about the legal limits and powers afforded the military domestically. One law that suffers from misinterpretation and misuse is the Insurrection Act. This can be seen at the highest levels of government, as President Donald Trump recently fired Secretary of Defense Mark Esper, reportedly for recommending limits on military deployment for law enforcement purposes over the summer. However, many make similar errors. In the woebegone spring days of sheltering in place, many in the media misunderstood the limits placed on military deployment in health crises. The Posse Comitatus Act, and its limits on domestic law enforcement operations by federal troops, is all too often publicly misunderstood. As one scholar argues succinctly, “’Posse comitatus’ is now commonplace shorthand for the axiom, ‘The military may not operate on U.S. soil.’ While that claim may be erroneous—there are plenty of instances where the military is free to operate on U.S. soil—it speaks to the PCA’s stature in America’s political consciousness.”

It is our goal to help readers understand the legal foundations and limits of a federal response, regardless of presidential administration, if the pandemic crisis indeed brings a “dark winter.”

The Posse Comitatus Act famously prohibits the use of federal troops—not state based National Guard members—from acting in a law enforcement capacity. However, the Posse Comitatus Act can be superseded by legislation from Congress which authorizes the President to deploy military forces in a domestic capacity. There are two main pieces of legislation which have previously been used to deploy military forces domestically in a non-military context: the Stafford Act and the Insurrection Act. The Stafford Act’s primary purpose is to allow the federal government to provide relief to areas of the country which have been impacted by natural disasters or manmade emergencies and allows the military to act in humanitarian-type missions. In accordance with the generally understood first responder concept, aid is given to the affected area or state after that state requests aid with the understanding that its available resources are insufficient to deal with the crisis alone.

Historically speaking, the Insurrection Act, § 251 afforded the President powers to authorize the use of military force in situations where a state’s government becomes the victim of an insurrection, and that state’s legislature requested aid, or if the governor requested aid in the absence of the legislature. Section 253 of the statute expands the conditions under which the President can authorize domestic military deployment to include situations where “any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution” or where an insurrection “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” In 2007, Section 253 was amended to include the possibility for the armed forces to be deployed in an effort to respond to a “major public emergency” and the amended form allowed the President to authorize the deployment of American military forces to restore public order in the face of a natural disaster, epidemic or other form of a significant public health crisis, or a terrorist attack.

This amendment was used in the media to support the view that President Trump should mobilize the military to address the medical and other needs of the American public during the pandemic. For example, a former Marine colonel opined for USA Today that “recent revisions to the Insurrection Act of 1807 authorize the president to use the military in the event of  ‘natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States’ that results in a breakdown of local law and order.”

However, this provision was repealed by H.R.4986 – National Defense Authorization Act for Fiscal Year 2008 (section 1068) , due to widespread backlash—including from the governors of all fifty states—and concerns that enacting the provision would lead to substantial overreach of the federal government’s available powers, further reinforcing the idea that the local, state, and tribal governments are the entities with the majority of the powers available when it comes to domestic emergency relief, as opposed to the federal government. It is well documented that the United States’ disaster relief efforts prioritize state, local and tribal governments, because they are better equipped to deal with the needs of their respective areas of governance.

To be sure, the applicable laws regarding the ongoing pandemic and the proper responses of the federal and state governments are complex. This brief discussion—while unable to completely discuss the nuances, judicial interpretation, or legal opinion of even these laws—does lend itself to the public understanding of how and when the military can deploy domestically in the U.S.

The Cipher Brief’s Academic Partnership Program was created to highlight the work and thought leadership of the next generation of national security leaders. If your school or University is interested in becoming an Academic Incubator partner school, drop an email to [email protected].  

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