Sovereignty, Article II, and the Military During Domestic Unrest

[This essay is available in PDF at this link]

In this article, I contest two theories of inherent presidential power, rooted in Article II, to use the military to respond to domestic unrest during peacetime. This question is more contested than one might imagine. Based on all available evidence, in June 2020 President Trump relied on a doctrine of inherent Article II authority to deploy thousands of National Guard personnel to the streets of Washington, D.C. in response to Black Lives Matter protests. On January 6, 2021, the Commanding General of the D.C. National Guard more explicitly contemplated using a second, different doctrine of inherent authority to deploy his soldiers to retake the Capitol Building. This article mines archival War Department legal opinions and previously unavailable Department of Justice Office of Legal Counsel memoranda obtained under the Freedom of Information Act to reconstruct and critique the legal arguments underpinning these two doctrines of inherent authority.

This critique brings together two bodies of scholarship: (1) whether and how executive powers may be imputed from federal sovereignty and (2) methodologies for using historical practice to define ambiguous constitutional text. I reconstruct how the executive has justified these two doctrines by relying on historical assertions of power implied from federal sovereignty and based in necessity. My reconstruction shows how the executive disregards and mischaracterizes congressional responses to these assertions. It also demonstrates how the executive incompletely addresses Supreme Court precedent concerning inherent executive authority. I then draw on these observations to argue that an essential and underemphasized precondition for using historical practice as a means of constitutional interpretation is establishing the notoriety of executive branch practice and associated legal rationales. Finally, I consider what might be done to rein in this type of overreach, which rarely (if ever) is subject to judicial scrutiny.

[*] Climenko Fellow and Lecturer on Law, Harvard Law School.