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Thousands march in Washington, D.C. protesting police brutality and the killing of George Floyd in Minnesota at the hands of local police, on Saturday, June 6, 2020. Derek Chauvin, the police officer that was caught on video kneeling on Floyd’s neck for nearly 9 minutes as the unarmed, handcuffed man laid flat and unable to breathe, has been charged with third-degree murder and second-degree manslaughter. Mass demonstrations have taken place nationwide since the incident took place. Thousands march in Washington, D.C. protesting police brutality and the killing of George Floyd in Minnesota at the hands of local police, on Saturday, June 6, 2020. Derek Chauvin, the police officer that was caught on video kneeling on Floyd’s neck for nearly 9 minutes as the unarmed, handcuffed man laid flat and unable to breathe, has been charged with third-degree murder and second-degree manslaughter. Mass demonstrations have taken place nationwide since the incident took place.

In a conference call with the nation’s governors last month, President Trump threatened to deploy the United States military to restore order following protests over the alleged police murder of George Floyd. Putting aside the moral and political issues raised by this threat, would deployment of the military at this time, in the absence of a governor’s request to do so, be lawful? Analysis begins with the Posse Comitatus Act, 18 U.S.C. § 1385, which prohibits the use of the Army or Air Force to enforce the law “except in cases or under circumstances expressly authorized by the Constitution or Act of Congress.” Three statutory authorizations, collectively known as the Insurrection Act are potentially relevant. First, 10 U.S.C. § 251 permits the use of the military to suppress “insurrection”, but it requires the request of the state government. That statute was used to authorize the use of federal troops during the riots of the 1960s. Second, 10 U.S.C. § 252 permits the use of federal troops whenever “the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.” That statute was enacted in 1861 to ratify Lincoln’s call for troops at the beginning of the Civil War. Third, 10 U.S.C. § 253 authorizes the president to use federal troops when insurrection or conspiracy denies any class of citizens their constitutional rights or obstructs the enforcement of federal law. That statute was used to override state resistance to federal court desegregation orders by President Eisenhower in Arkansas and President Kennedy in Mississippi and Alabama. We do not believe that § 251, which requires a state request, or § 253, which requires denial of equal protection or obstruction of federal law, could reasonably justify the use of the military in the present circumstances absent state invitation. Section 252 would likely be the purported authority the president would use.

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