Incoming President Donald Trump repeatedly mused on the campaign trail about various means of retribution, including possibly invoking martial law – the temporary substitution of military rule for regular civilian law enforcement, generally limited to times of rebellion, or natural disaster. Despite Trump’s currently unformed plans, such a possibility shouldn’t be considered lightly. Such an order gives a military commander near unlimited authority to make and enforce law according to no less an authority than the U.S. Department of Justice. By statute, martial law can only be invoked when civilian authority has “ceased to function, is completely absent, or has become “ineffective.”” The last word is operative – obviously, only the president defines “ineffective.” It is against this backdrop that military leaders are now considering whether to and when they must consent to a future Donald Trump order regarding domestic deployment – and they’re not having an easy time of it.
To give one an idea as to what the “ineffective” has historically meant, the American section on Martial law in Wiki allots a full section to each order and none since 1992. A layman can point out that civilian law-enforcement was substantially strengthened during the late 20th and early 21st Centuries. Indeed, many of us have pointed out that domestic police departments can now look a lot like U.S. Special Forces. There is little reason to find that the military might be needed – a conclusion so seemingly obvious that Politico reports that military leaders are currently debating the limits of legal orders – the kind they must follow if they want to stay out of prison:
According to nearly a dozen retired officers and current military lawyers, as well as scholars who teach at West Point and Annapolis, an intense if quiet debate is underway inside the U.S. military community about what orders it would be obliged to obey if President-elect Donald Trump decides to follow through on his previous warnings that he might deploy troops against what he deems domestic threats, including political enemies, dissenters and immigrants.
Despite what many perceive as a thirst on the Right to go after political enemies or even immigrants, there is no conceivable way that it remains a done deal that martial law can and will be ordered – or one would hope. Setting aside the fact that if one wants to invoke martial law on Day One it should be an election issue (At the absolute least), there is also the fact that it’s up in the air as to whether it’s possible to ever really pull back from suspension of the Constitution. All dictatorships begin as a “temporary” solution to restore law and order. There is also the consideration that even if one could justify deploying the military, U.S. forces are simply not very good at it. How can they be? It is not like they trained for it.
One fear is that domestic deployment of active-duty troops could lead to bloodshed given that the regular military is mainly trained to shoot at and kill foreign enemies. The only way to prevent that is establishing clear “rules of engagement” for domestic deployments that outline how much force troops can use — especially considering constitutional restraints protecting U.S. citizens and residents against what kinds of people in what kinds of situations. And establishing those new rules would require a lot more training, in the view of many in the military community.
Donald Trump is known for a lot of things but he’s popular among his supporters for his lack of restraint – surely a fact not lost on commanders. Additionally, “new rules” are nowhere to be found and yet “Day One” is upon us – if still yet a week away. It is scary that this remains up in the air. Trump owes it to the American people to be upfront and say yes – he plans on invoking martial law even absent any real change in current conditions, or no – he won’t.
Silence.
Well, it is better than a “yes” in some respects. For a guy who pledged to make the United States “great again,” it would seem that the suspension of the Constitution couldn’t possibly be considered. That same Constitution did, more than any other document or premise, get us to today – which is not all bad relative to the turbulent 60s when last invoked. The only conceivable justification might be to secure the borders and even that didn’t go well during Trump’s last term – which matters, especially to the people who steer the economy.
I write this so often that some are going to roll their eyes, but one of the last checks on any administration is Big Money – Wall Street, which can always bring the whole country to a halt by refusing to loan money. Much of the U.S. economy rides on the back of the 30-year mortgage, the bet that the next 30 years will look close enough to the last 30 years such that loans are safe. Widespread martial law (Which has never been invoked unless one wants to consider the Union’s occupation of the South following the Civil War) looks nothing like the last 30 years and it could, one could argue – should, scare major banks into a corner. The simple fact really ought to make any president shake a head while pulling back the pen.
All presidential elections center first on the economy. Among his voters, Trump was hired to keep egg prices down and reform the border – not arm it. With respect to immigration and the economy, he’s making a big enough bet with the tariffs promised on products from Canada and Mexico. More than ever, he really should tread lightly here. Military rule on top of that? (And we’re here only assuming doing so in the immigration context) it is probably safe to say that no one knows what will happen.
Which brings us back to the people commanding said military. General officers don’t need to know a lot of rules but they all know one. They are required to follow lawful orders while refusing the illegal. One might hope that they would stand tall in the face of anything un-Constitutional. But it is far safer to follow a questionable order now than to be vindicated in 15 years when freed from a cell. Refusing to follow an illegal order is easy, so long as one gets it right, every. single. time, so much so that everyone agrees – ahead of it. It is probably prudent to have those discussions now, ahead of it, and present a basic set of findings to Trump prior to “Day One.”
Maybe they have that very plan. After all, Donald Trump hasn’t been very open about his own. It remains a much safer bet to keep the Pentagon’s findings under wraps, too.
God Bless: I can be reached at [email protected] and on “X at @JasonMiciak and now on Bluesky.
Hello Mr. Miciak,
The great adage is “follow the money”, correct? I think that your point about Wall Street illustrates that fact. Thanks your post.
Ursula…When it comes to ‘lawful’…what does the law stand for when you review the number and extent of the various laws Trump has broken without consequences that would have landed an ordinary citizen in jail for life? Then the law allowed him to continually spread propaganda freely over all the airwaves since he walked on the scene. He colluded with our enemy to steal 2016, and was allowed to put reprehensible members on the Supreme Court, slanting it in his favor. He led a violent mob against the legislature! He walked on 34 felony convictions by JURY, along with 10 contempt charges. Now, by hook or crook, he suddenly represents the LAW of the land. Really? He will use every tool at his disposal to get whatever he thinks he wants at the moment. Everyone else needs to get a grip about that, and decide right now the following question: what am I prepared to ignore, as things unfold in more evil that has a human cost? Where is that line for me, since I have no vote where everyone else is concerned? Members of the military are on the front line of that question. It’s harder for them. They are trained to take orders from the top at great personal risk on the bottom. Yet, no dictator survives once it’s lost or turns on them. All of us veterans know we didn’t take a solemn oath to a person, but to defend the Constitution, a document that means nothing to a dictator. It may be our hopes are pinned on military leaders. I wonder what the rapist will decide as the top lapdog for Herr Trump? Ready. Aim. Fire! Expect the worst, hope for the best.
Sorry Jason.
In Trump speak, make America great again means make him great again, by being president. He would suspend the constitution because it impedes what he wants to do. That basically is all this is about. He conflates the country with himself. Every time he has a legal setback, it is bad to for the country.
I feel.like we are living in a science fiction novel. We already have Baron Harlingen being sworn in as president in a week. Don Junior isn’t smart enough to be the Barons heir,,and I doubt he’d even try to duel.someone better than him; Junior is only good at murdering at animals which are driven toward him ( I hate trophy hunters). So.far there is no Paul.Atreides, but if a,sand worm shows up on.the 20th…