Democratic senators are calling on Biden to try to limit Trump’s ability to use the US military domestically

Two Democratic senators are calling on the Biden administration to issue a policy directive that could temporarily limit President-elect Donald Trump’s ability to deploy U.S. military troops domestically after he takes office.

Sens. Elizabeth Warren, D-Mass., and Richard Blumenthal, D-Conn., both members of the Armed Services Committee, sent a letter to President Joe Biden and Defense Secretary Lloyd Austin on Nov. 26 urging them to issue a directive to issue guidance that would ensure that U.S. troops can only be deployed when local or state authorities request federal assistance or are unable or unwilling to protect the public.

“We write to urge you to enact a policy prohibiting the mobilization of active military or federalized National Guard personnel for use against their fellow Americans unless specifically authorized,” they wrote.

After taking office on January 20, Trump could issue his own policy directive that would reverse the directive issued by Biden. Warren and Blumenthal, whose offices said the letter speaks for itself, apparently hope that publicly highlighting the issue might deter Trump.

During his first term, Trump considered using the Insurrection Act in response to the Black Lives Matter protests. And some of his allies urged him to consider declaring martial law after his defeat in the 2020 election.

Recently, Trump indicated he would use the U.S. military to help deport immigrants who do not have permanent residency status. He also said he would move U.S. troops from overseas and station them at the southern border. And Trump has repeatedly talked about deploying troops to fight “the enemy from within.”

In an interview with Fox News before the election, he said: “I think the bigger problem is the people on the inside.” We have some very bad people. We have some sick people, radical left-wing crazy people. And I think they are – and this should be handled very simply – if necessary, the National Guard or, if it is really necessary, the military, because they cannot allow that.”

Federal troops are prohibited from participating in domestic law enforcement under the Posse Comitatus Act, a law dating to 1878. It prohibits the president from using the military for such a purpose unless the Constitution or an act of Congress specifically authorizes it.

An exception is created by a separate law, the Insurrection Act, a consolidation of various laws passed by Congress between 1792 and 1871. It allows the president to deploy military troops in the event of an insurrection, rebellion, or extreme unrest.

In their letter, Warren and Blumenthal called on the Biden administration to issue a policy directive before Biden leaves office that would require state or local officials to request assistance before deploying federal forces.

“We urge you to issue a policy directive that makes clear that the narrow application of the Insurrection Act should be limited to cases where state or local authorities are so overwhelmed and the state’s chief executive requests assistance,” they wrote, “or.” Attacks against the U.S. government overwhelm state or local authorities.”

Civil rights groups have warned that Trump could abuse the military in a second term. Joseph Nunn, counsel to the Liberty and National Security Program at the Brennan Center for Justice at NYU Law, warned that the Insurrection Act gives the president virtually unlimited discretion and power to use the military as a police force and that it is essentially a loophole creates in the posse comitatus law.

“If Congress does not act now to reform this dangerous and outdated law, there is little anyone can do to stop it,” Nunn wrote last year, citing fears that Trump would abuse his power if re-elected.

Warren and Blumenthal also called on the White House to ensure that future administrations go to Congress before turning to the military for domestic law enforcement.

“Finally, we urge you to clarify that the President must consult Congress to the fullest extent possible before exercising this authority and to provide legal authority to the Federal Register,” they wrote.

They warned that the recent Supreme Court decision expanding presidential immunity for official acts made the need for clear policy even more urgent.

“Given the disagreement among scholars about the serious implications of the Supreme Court’s recent decision, it is reasonable to assume that service members, other Defense Department personnel, and the broader military community may not be aware of or fully understand their rights and responsibilities,” Warren and Blumenthal wrote.

“If left unclarified,” they added, “any ambiguity about the lawful use of military force, coupled with President-elect Trump’s demonstrated intent to use the military in such dangerous and unprecedented ways, could prove devastating.”