1A 'If You Can Keep It': The President And The National Guard
Jun 16, 2025
Elizabeth Goitein, a legal expert with the Brennan Center for Justice, and Mark Nevitt, a law professor and retired Navy commander, dive into the legal complexities of deploying the National Guard domestically. They discuss the Posse Comitatus and Insurrection Acts, examining how these laws set the stage for modern presidential authority. The conversation highlights the tension between public safety and individual freedoms and explores the military's role in civil unrest, especially in light of historical events like the 1992 Los Angeles riots.
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Limits on Military Domestic Use
- The Posse Comitatus Act prevents federal troops from direct law enforcement roles to protect individual liberty and prevent tyranny.
- The Insurrection Act is the main exception, allowing troop deployment for rebellion or law enforcement obstruction, but usually only with state requests or extreme circumstances.
Military Hesitates Law Enforcement Role
- The military traditionally resists law enforcement roles on U.S. soil due to constitutional and historical reasons.
- The military is more accustomed to disaster response than to engaging in civilian law enforcement missions.
Historical Roots of Deployment Laws
- The Insurrection Act originally had strict judicial and congressional oversight which was later relaxed, increasing presidential discretion.
- The Posse Comitatus Act, despite its racist origins, enshrines a principle protecting against military oppression rooted in colonial history.