John Yoo: Seattle unrest – Does Trump have the power to intervene? Should he?

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Unrest in Seattle continues the question of whether President Trump should send U.S. troops into American cities to restore order.

“Take back your city NOW. If you don’t do it, I will,” Trump tweeted Wednesday night in response to the latest disturbance, in which protesters stormed city hall to demand the mayor’s resignation and seized six blocks of downtown which they declared a “Capitol Hill Autonomous Zone.”

Seattle police apparently have ceded the area, evacuated the police station, and will not return except to respond to a 911 call.

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"This is not a game,” Trump warned  Washington Gov. Jay Inslee and the Seattle mayor. "These ugly Anarchists must be stooped IMMEDIATELY. MOVE FAST.”

The Constitution and congressional acts give Trump the legal power to call up National Guard units or even active-duty forces to stop disturbances that prevent the enforcement of the law.  While Trump has wisely refrained from any widescale deployment of troops, the failure of state or local governments to maintain order may demand federal intervention.

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Protesters have turned out in Seattle and other cities against the May 25 killing of George Floyd while in the custody of Minneapolis police. Minnesota prosecutors have properly charged one police officer, Derek Chauvin, with murder, and three other officers with aiding and abetting.  While the killing calls out for justice and justifies peaceful protest, it does not permit the rioting, violence and looting that befell several of the nation’s largest cities.

Under the Constitution, the primary responsibility for criminal law enforcement lies with the states, not the federal government. Maintaining law and order and protecting public health and safety fall squarely within the “police powers” reserved to the states under the Tenth Amendment. While the federal government plays a significant role in regulating interstate crime and sending money and support to states, the Constitution gives Washington, D.C., no explicit power to handle garden variety crime.

But President Trump has constitutional power when violence rises beyond the resources of state and local authorities.

Having the legal authority does not mean the president should deploy troops. Whether to use that power is a difficult judgment call.

Presidential authority comes in part directly from the Constitution. The president has the constitutional responsibility to “take Care that the Laws be faithfully executed.” Large-scale civil disturbances interfere with the execution of federal laws, such as the mails, communications and transportation. The "Republican Form of Government" guarantee clause also requires the federal government to protect the states “against domestic Violence,” at the request of the legislature (or, in extreme circumstances, the governor).

The Constitution also gives Congress significant powers to quell disturbances. Article I, Section 8 authorizes Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” In the Insurrection Act of 1807, Congress authorized the president to use troops in response to rioting that rises to the level of an “insurrection” that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”

Presidents have long used these authorities in response to large civil disturbances.

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In 1794, George Washington called for the state militias to put down the Whiskey Rebellion. The most famous case was Abraham Lincoln’s deployment of federal forces against the Confederacy at the outbreak of the Civil War. Under the Insurrection Act, Dwight Eisenhower sent the 101st Airborne when Arkansas Gov. Orville Faubus refused to desegregate Little Rock’s public schools. In 1992, President George H.W. Bush sent troops to help restore order in Los Angeles during the Rodney King riots.

Critics have suggested that using the military would violate the Posse Comitatus Act. But that act prohibits the use of the military for law enforcement purposes. It would not apply if the president ordered troops to deploy for the limited role of supporting state and local police to restore order, rather than arresting looters and criminals. The act also allows for exceptions when authorized by other federal laws, such as the Republican Form of Government guarantee clause and the Insurrection Act.

But having the legal authority does not mean the president should deploy troops. Whether to use that power is a difficult judgment call.

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Seattle so far does not seem to have risen to the level of the Rodney King riots or the severe looting and destruction in New York City, Los Angeles and San Francisco. Trump should only introduce troops when the violence grows beyond the ability of the states to protect public health and safety. Federal intervention will be difficult, if not impossible, if governors and mayors resist it; their cooperation is critical for U.S. troops to succeed.

The unrest in Seattle raises a more difficult case that arises when cities refuse to respond to civil disorder and leave innocent civilians to their fates at the hands of the violent. In the unfortunate event that city authorities disregard their fundamental responsibility to protect health and safety, the administration may have to reconsider the prudent policy, so far, of refraining from the use of troops in our cities.

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