Domestic Military Operations and the Coronavirus Pandemic

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Domestic Military Operations and the Coronavirus Pandemic Domestic Military Operations and the Coronavirus Pandemic

Mark P. Nevitt

Emory University School of Law

, mark.nevitt@emory.edu

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Mark Nevitt,

Domestic Military Operations and the Coronavirus Pandemic

, 11 J. NAT'l Sec. L. & POL'y 107

(2020).

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Domestic Military Operations and the

Coronavirus Pandemic

Mark Nevitt*

NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

I. E

MERGENCY LAW AND THE MILITARY’S CORONAVIRUS RESPONSE . . . . . . 110

A. Public Health Emergency: A Federal Quarantine? . . . ..... 110

B. National Emergencies Act (NEA) Emergency Declaration. . . 112

C. Stafford Act Emergency and Major Disaster Declarations. . . 113

II. T

HE MILITARY AS LAW ENFORCER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

A. The Posse Comitatus Act (1878) and Governing Regulations:

Preventing a Federal Military Role in Law Enforcement.... 115

B. Insurrection Act: A Critical Posse Comitatus Act Exception . 117

C. Martial Law and Military Pandemic Response: A Legitimate

Concern? . . . .................................... 122

1. Martial Law and the Writ of Habeas Corpus ......... 123

2. Federal Authority to Impose Martial Law ............ 124

3. State and Localized Authority to Impose Martial Law. . . 125

D. Judicial Review of Domestic Military Use ............... 125

III. M

ILITARY AS RELIEF PROVIDER:SUPPORT TO CIVIL AUTHORITIES . . . . . . 127

ONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

NTRODUCTION

In response to the novel coronavirus crisis, we are witnessing one of the largest

domestic military operations in American history. To date, more than 45,700

Army and Air Force National Guardsmen and women operating under state

authorities have been activated. And thousands more federal military forces—to

include 5,900 Navy, Air Force and Army Reservists—are supporting the corona-

virus response via a variety of missions.

The military’s coronavirus crisis

response is deﬁned by diversity in service, personnel, and mission:

* Mark Nevitt is Associate Professor of Law at Syracuse University College of Law (Summer 2020).

Prior to his appointment at Syracuse, he served as the Class of 1971 Distinguished Professor of

Leadership & Law at the U.S. Naval Academy and Sharswood Fellow at the University of Pennsylvania

Law School. He served for 20 years in the Navy as both a tactical jet aviator and attorney in national

security assignments throughout the world, serving in the rank of commander. He especially thanks

Professors Bill Banks, Steve Dycus, and Gene Fidell, and the editors of the Journal of National Security

1. I use the shorthand “federal military forces” to include all military forces operating under Title 10,

U.S. Code, including federalized personnel of the National Guard. This highlights the distinction

between federal forces and National Guard forces operating under State Active Duty (SAD) or Title 32,

U.S. Code. This deﬁnitional shorthand is consistent with governing military regulations. See U.S. D

EP’T

107



Service: Military support has come from all branches of the armed

forces—Army, Navy, Air Force, Marines, Space Force, and Coast

Guard.

While not a branch of the armed forces, the PHS

Commissioned Corps is also playing a critical support role as a

unique “uniformed service of public health professionals.”



Personnel: Military personnel in support of the coronavirus

response include members of the active duty military, Reserves, and

National Guard. Each military unit, in turn, reports to either the state

governor via State Active Duty (SAD) or Title 32 authorities, or to

the President pursuant to Title 10 authorities.

Both the type of per-

sonnel and the chain of command—federal or state—determine the

scope of the military unit’s legal authorities and its capacity to

undertake certain missions.



Mission: To date, the National Guard operating under state author-

ities has been the military’s face of the coronavirus response. The

federal military forces have largely supported this effort via their

longstanding “Defense Support to Civil Authorities” (DSCA) mis-

sion.

Earlier concerns that the military might overtake civilian

functions and supplant civil authorities via martial law have yet to

be realized. The Navy deployed hospital ships to both coasts, the

Army Corps of Engineers built a functioning hospital from the

ground up at the Javits Center, and the National Guard has been acti-

vated in all 50 states, 3 territories, and the District of Columbia.

OF DEF.DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES 16 (Mar. 18, 2018) [hereinafter CIVIL

AUTHORITIES].

2. 10 U.S.C. §101(a)(4) (2018). (The Space Force was added in 2019. See National Defense

Authorization Act for Fiscal Year 2020, Pub. L. No. 116–92, §952(c) (2019). The Coast Guard is a

“military service and branch of the armed forces of the United States at all times.” 14 U.S.C. §1 (2018).

It is ordinarily part of the Department of Homeland Security. The Public Health Service (PHS)

Commissioned Corps has played a central role in the coronavirus crisis as a quasi-military service. The

Coast Guard possesses special authority to enforce quarantines and health laws in conjunction with

direction of the Secretary of health and Human Services. 42 U.S.C. §97 (2018). For an overview of the

different military branches and their role in domestic operations, see Mark Nevitt, Unintended

Consequences: The Posse Comitatus Act in the Modern Era,37C

ARDOZO L. REV. 119 (2015).

3. 42 U.S.C. §217 (2018). The PHS Commissioned Corps is now a division of the Department of

Health and Human Services. The President has the authority “[i]n time of war, or of emergency

involving the national defense proclaimed by the President” to declare it a military service. President

Truman exercised this power in 1945. See also Masha Simonova & Nathaniel Sobel, Federal Executive

Emergency Authorities to Address COVID-19,L

AWFARE (Apr. 2, 2020), https://perma.cc/UHE4-

VGHK.

4. See C

IVIL AUTHORITIES, supra note 1.

5. See C

IVIL AUTHORITIES, supra note 1. Technically, under DOD doctrine the DSCA mission

includes both a law enforcement and a non-law enforcement function. As discussed in Part II, there are

considerably more restrictions on using the military in a domestic law enforcement capacity. In previous

iterations, this was called a military operation other than war (MOOTW).

6. See Dep’t of Def., COVID-19 Response, https://perma.cc/K3SB-MGF4 (information current as of

May 27, 2020) [hereinafter COVID Response].

108 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

National Guard units are playing a more active role in law enforce-

ment matters, with some governors initially turning to their National

Guards to enforce social distancing guidelines or stopping out-of-

state visitors.

This trifecta of service, personnel, and mission determines the scope of the

military’s legal authorities. Each military unit’s chain of command (federal or

state?), branch of military service (Army? Coast Guard?), and mission (law

enforcement or relief aid?) inform the scope of its duties.

As I explain below, the National Guard-focused approach provides maximum

operational ﬂexibility for governors and military commanders responding to the

coronavirus crisis in a variety of missions. While these National Guard forces

sometimes receive funding from the federal government, the funding source does

not deﬁne their legal status and ability to actively support the law enforcement

mission if called upon to do so—their chain of command does. In contrast, federal

military forces operating under Title 10 authorities report to the Secretary of

Defense and President as Commander in Chief.

This distinction in state vs. fed-

eral authority over the military has a historical basis in fears of a standing army

that predate the Constitution. These concerns were hotly debated at the nation’s

founding and remain enshrined in the Constitution.

Independent of the coronavirus response, President Trump has consistently dis-

played a willingness to insert himself into day-to-day military matters that have

historically been handled via the uniformed military leadership or the independ-

ent military justice system. As of this writing, the President is considering calling

in federal military forces to support law enforcement in response to protests from

the tragic death of George Floyd at the hands of Minneapolis police ofﬁcers.

Further, President Trump has deployed the military in other, nontraditional

contexts—witness the military’s deployment to the U.S.-Mexico border.

His

statements and actions have raised concerns about the proper role of the military

7. CIVIL AUTHORITIES, supra note 1, at C2. Military support to law enforcement is addressed in a

different directive. U.S. D

EP’TOFDEFENSE,INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW

ENFORCEMENT AGENCIES (Feb. 27, 2013) [hereinafter LAW ENFORCEMENT]. Northern Command is a

combatant command. Unlike the National Guard, which may be federalized, federal military forces are

never under the control of state Governors. (“Federal military forces will always remain under the

command and control of the President and Secretary of Defense.”). See id. at 28.

8. While it is beyond the scope of this article to exhaustively address the consideration given to

standing armies during the Constitutional Convention, this concern was debated at length. See, e.g.,

Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 Y

ALE L.J. 149, 157-58 (2004).

Compare U.S. C

ONST. art. I, §8, cl. 12-13 (Congress shall have the power to “raise and support Armies”

and “provide and maintain a Navy”), with U.S. C

ONST. art. I, §8, cl. 15-16 (Congress shall have the

power “to provide for calling forth the Militia” and “to provide for organizing, arming, and disciplining

the Militia . . . reserving to the States respectively, the Appointment of the Ofﬁcers, and the Authority of

training the Militia according to the discipline prescribed by Congress.”).

9. Mark Nevitt, The President, the Military, and Minneapolis,J

UST SECURITY (May 29, 2020),

https://perma.cc/3YMB-8QCQ.

10. See Mark Nevitt, The Military, the Mexican Border and Posse Comitatus: Four Key Takeaways,

UST SEC. (Apr. 4, 2018), https://perma.cc/U87U-2Q8L.

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 109

on American soil, about the politicization of the military, and about the overall

health of civilian-military relations.

They have also increased the scrutiny of

Trump’s actions as he turns to the military to address the coronavirus crisis.

This article proceeds in three parts. Part I considers the emergency authorities

invoked to address the coronavirus, including the Public Health Service Act

(PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the

laws, regulations, and policies governing the military’s role as a law enforcer—

including restrictions on the military’s role to quell civilian disturbances. I also

brieﬂy discuss martial law, a rarely invoked but powerful authority held at the fed-

eral, state, and local levels. Part III deals with the scope of the military as emer-

gency aid and relief provider.

Unlike the military’s role in quelling domestic

disturbances, there are far fewer restrictions when it provides relief following a nat-

ural disaster or health crisis.

I. E

MERGENCY LAW AND THE MILITARY’S CORONAVIRUS RESPONSE

In exercising emergency authorities in response to the coronavirus crisis, the

President and the Secretary of Health and Human Services (HHS), Alex Azar,

have declared: (1) a public health emergency under the PHSA;

(2) an emer-

gency under the NEA;

and (3) both an emergency and a major disaster under

the Stafford Act.

Each declaration activates legal authorities that inform the

scope, size, and scale of the military’s response. Independent of these emergency

declarations, the President has invoked the Defense Production Act (DPA) to

facilitate the manufacture of critical medical supplies.

In what follows, I high-

light the scope of these three emergency and major disaster declarations, applying

them to the military’s coronavirus mission.

A. Public Health Emergency: A Federal Quarantine?

On January 31, 2020, Secretary Azar declared a public health emergency under

Section 319 of the PHSA. The PHSA contains a broad catch-all provision that

unlocks the Secretary’s power in times of public health emergency to:

11. For the classic account of civilian control of the military and the history of civil-military

relations, see S

AMUEL HUNTINGTON,THE SOLDIER AND THE STATE (1956).

12. This is governed by both military instruction and joint guidance. See C

IVIL AUTHORITIES, supra

note 1; J

OINT CHIEFS OF STAFF,JOINT PUB.NO. 3-28, DEFENSE SUPPORT OF CIVIL AUTHORITIES (DSCA)

(July 31, 2013) [hereinafter J

OINT DOCTRINE].

13. Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944) (codiﬁed as amended at 42

U.S.C. §§201-300mm-61 (2018)).

14. National Emergency Act of 1976, Pub. L. No. 94-412, 90 Stat. 1255 (codiﬁed at 50 U.S.C.

§§1601-51 (2018)).

15. Robert T. Stafford Act, 42 U.S.C. §5191 (2018) (outlining the authorities when declaring an

“emergency”); 42 U.S.C. §5170 (2018) (outlining the authorities when declaring a “major disaster”).

16. 50 U.S.C. §4533 (2018) The DPA authorizes the President to “create, maintain, protect, expand,

or restore domestic industrial base capabilities for the national defense.” Id. See also James E. Baker,

Use the Defense Production Act to Flatten the Curve,J

UST SEC. (Mar. 20, 2020), https://perma.cc/

HC7V-WHL5. Disagreement remains about how and when the DPA’s provisions were actually

implemented.

110 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

take such action as may be appropriate to respond to the public health emer-

gency, including making grants, providing awards for expenses, and entering

into contracts and conducting and supporting investigation into the cause,

treatment, or prevention of a disease or disorder

Despite its capacious language (“take such action”), the precise scope of this

provision remains unclear. Indeed, this question has not been litigated since its

passage in 1944. At a minimum, the public health emergency declaration permits

ﬂexibility in assigning personnel to the crisis, waives certain laws to respond

more expeditiously to the pandemic, and generally cuts through red tape to get

people and supplies to crisis points expeditiously.

How does a public health emergency declaration affect the military’s mission?

The answer remains murky. In 2008, a former senior HHS ofﬁcial stated that the

public health emergency declaration “does allow use of some waivers of pro-

grams, but . . . it is nowhere near as sweeping as a declaration of martial law.”

The scope of the PHSA’s critical federal quarantine and isolation authorities

also remains unclear. These authorities could potentially expand the military’s

mission, enabling its involvement in enforcing a quarantine.

Under 42 U.S.C.

§264, the Surgeon General—who reports to Secretary Azar—may “make and

enforce regulations . . . necessary to prevent the introduction, transmission or

spread of communicable diseases . . . from one state or possession into any other

state or possession.”

While this authority’s scope has not yet been tested, some

scholars have suggested that any federal quarantine invocation rests on shaky

constitutional grounds.

Any quarantine order would likely be enforced by the

military, subject to the constitutional and statutory restrictions discussed in Part

II. Authority under the PHSA for the use of troops also remains untested.

date, the PHSA’s practical impact on the day-to-day military coronavirus

response has been limited, as discussions about imposing a federal quarantine

have largely abated.

17. 42 U.S.C. §247d(a)(2) (2018) (emphasis added).

18. Alexandra Phelan, Explainer: National Emergency Declarations and COVID-19,J

UST SEC.

(Mar. 13, 2020), https://perma.cc/6FHM-QDZR.

19. Simonova & Sobel, supra note 3 (quoting former HHS Deputy Secretary Eric Hargan).

20. “Quarantine” is deﬁned as the “[s]eparation of individuals who have been exposed to an infection

but are not yet ill from other individuals who have not been exposed to the transmissible infection.”

Homeland Security Council, National Strategy for Pandemic Inﬂuenza Implementation Plan 209 (May

2006). “Isolation” is deﬁned as the “[s]eparation of infected individuals from individuals that are not

infected.” Id. at 208. See also 42 U.S.C. §97 (2018) (highlighting quarantine authorities).

21. 42 U.S.C. §264 (2018) (emphasis added).

22. See, e.g., Arjun K. Jaikumar, Note, Red Flags in Federal Quarantine: The Questionable

Constitutionality of Federal Quarantine after NFIB v. Sebelius, 114 C

OLUM.L.REV. 677 (2014).

23. Professor Jamshidi and other scholars have opined that the PHSA does not give the President the

authority to order interstate or intrastate quarantines of individuals en masse. Maryam Jamshidi, The

Federal Government Probably Can’t Order Statewide Quarantines,U.C

HI.L.REV.ONLINE (Apr.

2020).

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 111

Independent of the PHSA, the Supreme Court has recognized the right to travel

as a fundamental constitutional right.

Accordingly, any governmental measure

that restricts the right to travel is subject to strict scrutiny review. Under strict

scrutiny, the government would be required to demonstrate that any measures

used to restrict travel—such as a quarantine—are narrowly tailored to meet a

compelling interest (public health) via the least restrictive means available.

The

Court has, however, stated that travel may be abridged in “areas ravaged by ﬂood,

ﬁre, or pestilence . . . that would directly and materially interfere with the safety

and welfare of the area or the Nation as a whole.”

State governors already possess broad police powers to restrict travel within

their respective states, authority that has been used throughout the crisis.

Relatedly, states have taken the lead in promulgating rules and guidelines govern-

ing social distancing and intrastate travel. Governors possess a more limited

authority to halt travel from outside their states—but this has not stopped some

governors from trying. Governor Gina Raimondo, for example, ordered the

Rhode Island National Guard to stop incoming New Yorkers from entering her

state at the outset of the crisis. She later backed away after public criticism and

disagreement from New York Governor Andrew Cuomo.

Regardless of what

restrictions are ultimately put in place, National Guard forces commanded by

governors may play an important role in enforcing public health quarantines or

stay-at-home orders.

Thankfully, at the time of this writing it appears unlikely that the President will

turn to the public health emergency declaration to try to override these state-

based rules. In fact, the President and Attorney General William Barr have

expressed greater concern that states are imposing stay-at-home orders that are

too strict, harming the economy.

Any broadly imposed federal order on quaran-

tines would run into core federalism concerns if it sought to commandeer the ma-

chinery of state or local governments.

B. National Emergencies Act (NEA) Emergency Declaration

On March 13, 2020, President Trump declared an emergency under the

National Emergencies Act (NEA).

On March 27, 2020, he invoked the NEA

24. See Zemel v. Rusk, 381 U.S. 1 (1965).

25. For a discussion of the constitutional right to travel, see Timothy Baldwin, The Constitutional

Right to Travel: Are Some Forms of Transportation More Equal Than Others?,1N

W.J.L.&SOC.

OL’Y, 213 (2006).

26. Zemel, 381 U.S. at 15-16.

27. See, e.g., Frank Bruni, Opinion, The Governor Who Dissed New Yorkers, N.Y. T

IMES (Apr. 3,

2020), https://perma.cc/W9GQ-H2G3.

28. See Lisa Lerer & Kenneth Vogel, Trump Administration Signals Support for Allies’ Fight Against

Virus Orders, N.Y. T

IMES (Apr. 29, 2020), https://perma.cc/5UAB-ZRCZ.

29. See, e.g., New York v. United States, 505 U.S. 144 (1992); see also Bobby Chesney, Can the

Federal Government Override State Government Rules on Social Distancing to Promote the Economy?,

AWFARE (Mar. 24, 2020), https://perma.cc/66AG-VLPG.

30. Proclamation No. 9994, Declaring a National Emergency Concerning the Novel Coronavirus

Disease (COVID-19 Outbreak), 85 Fed. Reg. 15337 (Mar. 13, 2020).

112 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

again in authorizing Secretaries of each military department to order certain

members of the military (Selected Reserve and Individual Ready Reserve) to

active duty.

The NEA serves as the “key” to unlock the authorities behind

numerous statutory “doors.” In declaring a national emergency, the President

gains access to a menu of 136 statutory emergency authorities.

Despite the

NEA’s far-sounding implications, however, its practical import to the military’s

coronavirus response appears limited.

In his emergency declaration, the President speciﬁcally invoked section 1135

of the Social Security Act, which permits the HHS secretary to waive certain fed-

eral insurance requirements.

This should ease access to medical care for many

patients affected by the coronavirus. But the NEA declaration has not dramati-

cally affected the scope and scale of military operations.

C. Stafford Act Emergency and Major Disaster Declarations

On the same day that the President declared an emergency under the NEA, he

also declared a Stafford Act emergency. In doing so, he stated that the federal

government has “primary responsibility” for the coronavirus response.

This

Stafford Act emergency declaration authorizes FEMA to provide ﬁnancial sup-

port to states and localities, tapping into the federal Disaster Relief Fund. Shortly

after the emergency declaration, all 50 states, three territories, and the District of

Columbia requested that the President also make a Stafford Act “major disaster”

declaration. The President did so, marking the ﬁrst time since the Stafford Act’s

passage that a major disaster was declared in response to a public health emer-

gency.

These major disaster declarations provide additional authorities to facili-

tate the provision of medicine, food, and emergency personnel to states. But as

with the NEA declaration, the Stafford Act emergency and major disaster decla-

rations do not legally change the military’s fundamental authorities.

In sum, our coronavirus response has resulted in three distinct emergencies

(PHSA, NEA, and Stafford Act) and a total of 54 Stafford Act “major disasters”

across all states, three territories, and the District of Columbia. To date, these dec-

larations mostly tap into federal funding, cut through red tape, and facilitate

31. Exec. Order No. 13912, National Emergency Authority to Order the Selected Reserve and

Certain Members of the Individual Ready Reserve of the Armed Forces to Active Duty, 85 Fed. Reg.

18407 (Mar. 27, 2020).

32. One scholar, Elizabeth Goitein of NYU Law School, estimated that there are 136 independent

statutory authorities that could be invoked pursuant to the NEA. B

RENNAN CENTER FOR JUSTICE, A

Guide to Emergency Powers and Their Use (Dec. 5, 2018), https://perma.cc/3ERC-UVEF.

33. See Proclamation No. 9994, supra note 30.

34. Id. Since that time, the President has increasingly sought to place the burden of responsibility for

the coronavirus response on the states.

35. The deﬁnition of “major disaster” under the Stafford Act does not speciﬁcally list “pandemics.” It

does, however, list natural catastrophes, ﬁre, ﬂoods, or explosions that “cause[] damage of sufﬁcient

severity and magnitude to warrant major disaster assistance under this Act. . . .” This major disaster

authority was not invoked or used in the West Nile, H1N1, or Ebola crisis. Mark Nevitt, The

Coronavirus, Emergency Powers and the Military: What You Need to Know,J

UST S EC. (Mar. 16, 2020),

https://perma.cc/BZ4B-PLHM.

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 113

access to resources and personnel. A massive federal quarantine—which would

test the limits of the public health emergency—no longer seems to be an option

that the executive branch is pursuing.

II. T

HE MILITARY AS LAW ENFORCER

The military is governed by numerous constitutional, statutory, and regulatory

constraints. Its employment in the COVID-19 crisis to date is further colored by

the longstanding American tradition of civilian control of the military and a

strong resistance to an active role for the military in domestic affairs, particularly

in law enforcement.

While the coronavirus response has not yet sparked massive civil disturbances,

protests at state capitols have increased as citizens look to reopen their economy.

And frustrations related to coronavirus restrictions are interspersed with the civil

unrest following the death of George Floyd. Some of these disturbances have

prompted the deployment of National Guard troops, but so far no federal military

forces have been used to control any of the current protests or domestic violence.

The President is, of course, the Commander in Chief of the armed forces.

While an examination of the precise scope of the President’s Commander-in-

Chief authorities is beyond the scope of this article, any presidential assertion of

authority that seeks to override existing statutes by asserting a plenary

Commander-in-Chief power would be subject to judicial review.

Longstanding concerns about military control supplanting civilian authorities

actually predate the nation’s founding. For example, the Declaration of

Independence listed, among its grievances against George III, that he “kept

among us, in times of peace, Standing Armies, without the Consent of our legisla-

tures,” and “affected to render the Military independent of and superior to the

Civil power.”

The Constitution authorizes Congress to “raise and support Armies,”

“pro-

vide and maintain a Navy,”

and “organiz[e], arm[], and disciplin[e], the

Militia.”

Under Article II, the President is, as noted above, the “Commander in

Chief of the Army and Navy of the United States and of the Militia of the several

states, when called into the actual service of the United States.”

The Third

36. See Mark Nevitt, The Operational and Administrative Militaries,53GA.L.REV. 905, 916-25

(2019).

37. See U.S. C

ONST. art. II, §2.

38. For a discussion of the Commander in Chief’s authority at its “lowest ebb,” see generally David

J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional

History, 121 H

ARV.L.REV. 941 (2008).

39. T

HE DECLARATION OF INDEPENDENCE ¶¶ 13-14 (U.S. 1776).

40. U.S. C

ONST. art. I, §8, cl. 12.

41. U.S. C

ONST. art. I, §8, cl. 13.

42. U.S. C

ONST. art. I, §8, cl. 16. Congress also has the authority to “provide for calling forth the

Militia to execute the Laws of the Union, suppress Insurrections, and repel invasions.” U.S. C

ONST. art.

I, §8, cl. 15.

43. U.S. C

ONST. art. II, cl. 2.

114 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

Amendment prohibits the quartering of soldiers in any house during time of

peace.

Outside of the Constitution’s text, restrictions on the military’s domestic use

can be found in statutes, regulations, and longstanding norms governing civilian

control of the military.

As a general rule, for example, federal military forces

operating under Title 10 are prohibited from enforcing state, local, and federal

laws, absent an express statutory authorization. The non-federalized National

Guard may directly participate in law enforcement matters, whether acting under

State Active Duty or Title 32.

In what follows, I analyze the relevant statutes and other laws that constrain

and empower the military when used in a law enforcement capacity, including

(1) the Posse Comitatus Act, (2) the Insurrection Act, (3) and the “law of martial

law.”

A. The Posse Comitatus Act (1878) and Governing Regulations: Preventing a

Federal Military Role in Law Enforcement

The Reconstruction-era Posse Comitatus Act (PCA) prohibits the federal

(“Title 10”) Army and Air Force from actively “execut[ing] the laws” on U.S.

soil. The PCA states:

Whoever, except in cases and under circumstances expressly authorized by the

Constitution or Act of Congress, willfully uses any part of the Army or Air

Force as a posse comitatus or otherwise to execute the laws shall be ﬁned

under this title or imprisoned not more than two years, or both.

While the PCA’s text makes no mention of the Navy or Marine Corps, the

DoD applies the PCA’s law enforcement restrictions to the Navy and Marine

Corps via departmental instruction.

Courts, however, have held that PCA limi-

tations do not apply to the Coast Guard, which is, after all, a law enforcement

agency as well as an armed force, and PCA limitations do not apply to the

National Guard in State Active Duty (SAD) status,

Title 32 status, or when

44. U.S. C ONST. amend. III.

45. There is a rich scholarly literature governing the military’s role in civil society. See, e.g.,

ILLIAM C. BANKS &STEPHEN DYCUS,SOLDIERS ON THE HOME FRONT:THE DOMESTIC ROLE OF THE

AMERICAN MILITARY (2016); JAMES E. BAKER,IN THE COMMON DEFENSE (2007); HUNTINGTON, supra

note 11.

46. 10 U.S.C. §1385 (2018) (emphasis added).

47. L

AW ENFORCEMENT, supra note 7, at 24 (applying the PCA’s legal prohibitions to the Navy and

Marine Corps).

48. It is beyond the scope of this article to provide an in-depth analysis of the distinction between

State Active Duty status and Title 32 status for the National Guard, as their underlying legal authorities

when operating in a law enforcement capacity are nearly identical. For a discussion of State Active Duty

status and Title 32 status when the National Guard is used in Defense Support to Civil Authorities see

U.S. D

EP’TOFDEF., INST. 3025.22 THE USE OF THE NATIONAL GUARD FOR DEFENSE SUPPORT OF CIVIL

AUTHORITIES (July 26, 2013) (C1, May 15, 2017).

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 115

the President orders the National Guard to quell civil disturbances under the

Insurrection Act.

Passed in 1878, the PCA has a complex and somewhat ignoble history.

Following the Civil War, President Ulysses S. Grant ordered federal troops to

protect African Americans’ voting rights in several Southern states.

These

troops—many of whom were former black Union soldiers—were stationed in the

South with the express mission of protecting the civil rights and liberties of

recently freed slaves. The PCA was passed in the aftermath of the notorious 1876

election that saw Rutherford B. Hayes emerge as the victor over Samuel Tilden.

Its passage coincided with the effective end of Reconstruction.

The resulting

political compromise saw federal troops removed from the South, ushering in the

disgraceful era of Jim Crow.

In examining current domestic military operations during the coronavirus and

beyond, the PCA’s prohibitions are always lurking in the background and must

be taken into account. Further, the PCA must be read in concert with regulations

prescribing DoD support to law enforcement. The PCA and governing DoD regu-

lations generally prevent federal military forces from exercising a direct role in

law enforcement, such as making arrests and searching or seizing people or

property.

Under the Military Purpose Doctrine, however, PCA violations do not occur

when federal military forces are engaged in law enforcement actions that are per-

formed primarily for a military purpose. This may include incidental assistance

to civil authorities,

or to a military or foreign relations function.

Federal mili-

tary forces are also authorized to participate in law enforcement functions to pro-

tect military personnel and equipment, or classiﬁed information, or to investigate

suspected Uniform Code of Military Justice violations.

Further, in “extraordinary emergency circumstances,” according to DoD doc-

trine, federal military forces may be used to subdue large-scale, unexpected civil

disturbances where prior authorization by the President is impossible.

49. See U.S. DEP’TOFNAVY,SEC’YOFNAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW

ENFORCEMENT OFFICIALS (Jan. 26, 2006). See also LAW ENFORCEMENT, supra note 7, at 23. Unlike the

Army or Air Force, neither the Navy nor the Marine Corps has a National Guard. Courts have refused to

extend the PCA restrictions to the Coast Guard. See, e.g., Jackson v. State, 572 P.2d 87 (Alaska 1977).

50. See, e.g., Matthew C. Hammond, The Posse Comitatus Act: A Principle in Need of Renewal,75

ASH. U. L.Q. 953, 954 (1997).

51. See R

ADLEY BALKO,RISE OF THE WARRIOR COP 24-25 (2013). For a discussion of the history

behind the PCA, see also Gary Felicetti & John Luce, The Posse Comitatus Act: Setting the Record

Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage is Done, 175 M

IL.L.

EV. 86 (2003).

52. L

AW ENFORCEMENT, supra note 7, at 15. The DoD Instruction counts 14 statutory authorizations

for the military to actively participate in law enforcement. See id. at 15-16.

53. J

OINT DOCTRINE, supra note 12, at III-2 (emphasis added). “Military or foreign relations

function” is an important catch-all phrase, but it remains not precisely deﬁned by federal courts or

military doctrine.

54. L

AW ENFORCEMENT, supra note 7, at 16.

55. Id. at 16-17.

56. Id. at 17.

116 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

DoD regulations additionally cite 14 statutes that expressly authorize the

armed forces to participate directly in law enforcement. One regulation describes

“execution of quarantine and certain health laws” in accordance with 42 U.S.C.

§97.

To be sure, the scope of the Military Purpose Doctrine and many of the

Posse Comitatus Act carve-outs mentioned above are articulated in military regu-

lations and are not necessarily reﬂected in any statute. But they nevertheless pro-

vide practical, operational guidance concerning how and when the military may

be employed domestically.

The military also may provide indirect assistance in support of a broader law

enforcement mission. This includes providing technical assistance, logistical sup-

port, and communications.

The Posse Comitatus Act has played an important, albeit below-the-surface,

role in the current coronavirus crisis. To date, the National Guard operating under

state authority has been the public face of the domestic U.S. military coronavirus

response. Guard personnel may conduct the full spectrum of military missions

unhindered by potential PCA limitations. Thankfully, the social-distancing and

isolation guidelines have so far reduced the need for the National Guard to play

an active role in law enforcement matters.

B. Insurrection Act: A Critical Posse Comitatus Act Exception

The Posse Comitatus Act’s restrictions do not apply “under circumstances

expressly authorized by the Constitution or Act of Congress.” The Insurrection

Act is the most important “Act of Congress” that provides a PCA exception. The

Insurrection Act refers to a series of laws—dating from 1792—that address the

circumstances under which federalized National Guard forces or active duty mili-

tary may be called into service by the President.

If the President invokes

Insurrection Act authorities, federal military forces may be used for a wide vari-

ety of missions domestically, to include law enforcement.

Of note, in the aftermath of Hurricane Katrina—during which New Orleans

witnessed a massive breakdown in civil order—the Insurrection Act was

amended to include cases of “natural disaster, epidemic or other serious public

health emergency.”

But Congress repealed this provision in 2008. This may

reﬂect Congress’s hesitancy to expand the President’s authority to use the mili-

tary outside traditional roles to control riots and other civil disturbances.

While invocation of the Insurrection Act in response to the COVID-19 crisis

has not been widely discussed, it has been proposed in reaction to protests

57. Id. at 18.

58. J

OINT DOCTRINE, supra note 12, at III-7.

59. 10 U.S.C. §§251-255 (2018). See also L

AW ENFORCEMENT, supra note 7, at 17 (referring to the

Insurrection Act as authority for DoD regulations).

60. John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364,

§1076, 120 Stat. 2083, 2404 (2006).

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 117

following the killing of George Floyd.

It is therefore important to consider

whether and how the President might use the Insurrection Act to overcome the

PCA’s restrictions.

First, a state legislature or governor could request assistance from the President

under 10 U.S.C. §251 “to suppress [an] insurrection.”

Whenever there is an insurrection in any State against its government, the

President may, upon the request of its legislature or of its governor if the legis-

lature cannot be convened, call into Federal service such of the militia of the

other States, in the number requested by that State, and use such of the armed

forces, as he considers necessary to suppress the insurrection.

If the President provides assistance in response to a state request, federal mili-

tary forces could be deployed to the requesting state to perform a wide variety of

missions, to include directly enforcing the laws.

Second, the Insurrection Act authorizes the President to deploy the military

(federal or state) without a state request.

Whenever the President considers that unlawful obstructions, combinations, or

assemblages, or rebellion against authority of United States, make it impracti-

cable to enforce the laws of the United States in any State by the ordinary

course of judicial proceedings, he may call into Federal service such of the mi-

litia of any State, and use such of the armed forces, as he considers necessary

to enforce those laws or to suppress the rebellion.

There must, however, ﬁrst be a civil breakdown in which courts cannot enforce

federal law. The precise scope of this authority remains untested, as it has been

rarely invoked, and courts have historically been reluctant to weigh in on the

scope of the Commander in Chief’s authority.

Third, the President may use the armed forces when there is simply an interfer-

ence with federal or state law. He may deploy the military in a state to suppress

an insurrection, domestic violence, unlawful combination, or conspiracy if it:

(1) so hinders the execution of the laws of that State, and of the United States

within the State, that any part or class of its people is deprived of a right,

privilege, immunity, or protection named in the Constitution and secured

by law, and the constituted authorities of that State are unable, fail, or refuse

to protect that right, privilege, or immunity, or to give that protection; or

61. A controversial New York Times op-ed by Sen. Tom Cotton (R-OK) called for the invocation of

the Insurrection Act in response to massive protests related to the killing of George Floyd. Tom Cotton,

Opinion, Send in the Troops, N.Y. T

IMES (Jun. 3, 2020), https://perma.cc/QY8M-PYS9.

62. 10 U.S.C. §251 (2018).

63. Id.

64. 10 U.S.C. §252 (2018). Today’s “organized militia” consists of each state’s National Guard and

Naval Militia. 10 U.S.C. §246(b)(1) (2018).

118 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

(2) opposes or obstructs the execution of the laws of the United States or

impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have

denied the equal protection of the laws secured by the Constitution.

The precise scope of 10 U.S.C. §253 remains largely untested. The most gener-

alized provision, it does not require either a state request (as in §251) or a speciﬁc

breakdown in judicial proceedings (as in §252).

Prior to the deployment of armed forces under any of these three Insurrection

Act provisions, the President must ﬁrst issue a proclamation to “immediately

order the insurgents to disperse and retire peaceably to their abodes within a lim-

ited time.”

Only after the order to disperse is issued may the President direct the

use of the armed forces—under his authority—to quell the disturbance.

The Insurrection Act was last invoked in 1992, when California Governor Pete

Wilson requested federal military assistance to restore law and order during the

Los Angeles riots.

Governor Wilson speciﬁcally noted that the California

National Guard could not undertake this task without outside help. President

George H.W. Bush, invoking the Insurrection Act generally, then issued an exec-

utive order that authorized the Secretary of Defense to federalize the National

Guard and deploy active duty Army and Marine personnel from bases in

California to the riot scene in Los Angeles.

Shortly after their arrival, the civil

unrest was quelled.

Perhaps not surprisingly, using the military to enforce domestic laws raises

broader concerns about the military’s role in civil society and whether the mili-

tary is undermining civil liberties. The Insurrection Act has not been invoked in

28 years, despite numerous high-proﬁle riots and unrest (Baltimore in the after-

math of Freddie Gray’s death, Hurricane Katrina, unrest in Ferguson, Missouri).

Remarkably, it was used earlier in the Twentieth Century to uphold and protect

the civil rights and liberties of minority groups. Both Republican (Eisenhower)

and Democratic (Kennedy) presidents used Insurrection Act authorities to deploy

federal military forces to Southern states to enforce civil rights and desegregation

laws in Arkansas (1957), Alabama (1962), and Mississippi (1963). In each of

these instances, federal military forces were deployed against the wishes of

Southern state governors who refused to enforce federal laws.

Consider how the Insurrection Act might be invoked in the current coronavirus

crisis. In Michigan, for example, armed civilian protestors took over the state cap-

itol in May, with local law enforcement stepping aside to avoid confrontation and

65. 10 U.S.C. §253 (2018).

66. 10 U.S.C. §254 (2018).

67. Proclamation No. 6427, 57 Fed. Reg. 19,359 (May 1, 1992). Complicating matters, the Los

Angeles police were the very subject of the protestors’ anger following the acquittal of ofﬁcers charged

with assaulting Rodney King.

68. Exec. Order No. 12804, 57 Fed. Reg. 19361 (May 5, 1992).

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 119

potential loss of life.

If the unrest continues, Michigan Governor Gretchen

Whitmer might deploy her own National Guard forces in an effort to restore

order. Or she could request federal assistance, as California’s Governor Pete

Wilson did in 1992. Because of the localized and ephemeral nature of these

coronavirus-related “mini-insurrections,” however, it appears unlikely that

Insurrection Act authorities would be necessary to overcome any breakdown in

law and order.

If President Trump nevertheless sought to federalize the Michigan National

Guard and call in nearby federal military units without a request from Governor

Whitmer or the Michigan legislature, he would be obliged to assert that activities

in that state “oppose[d] or obstruct[ed] the execution of laws of the United States

or impede[d] the course of justice under those laws.”

Or he would have to deter-

mine that those activities made it “impracticable to enforce the laws of the United

States in [that] State by the ordinary course of judicial proceedings.

In the

unlikely event that a court were willing to entertain a challenge to the President’s

action, it would face the difﬁcult task of applying these very broad terms to the

facts in a rapidly changing situation.

Consider a second example: what if a neighboring state, witnessing the

Michigan state capitol siege, sought federal military assistance in anticipation of

a future civil breakdown? A plain reading of the Insurrection Act’s text suggests

that such an anticipatory invocation would be without legal support. Those provi-

sions seem to indicate that an insurrection, disturbance, and breakdown of law

must be in existence order prior to the Insurrection Act being invoked. But

10 U.S.C. §253 provides, inter alia, for the use of federal military forces to sup-

press an “unlawful combination, or conspiracy,” perhaps in advance of any actual

violence.

States may always seek federal civilian law enforcement assistance, such as

from the U.S. Marshals Service or the FBI.

Under DoD Directives, a “tiered

response” to civil disturbances within the states is available in the following

order: (1) local and state police; (2) state’s National Guard in either state active

duty status or Title 32; (3) federal civilian law enforcement ofﬁcials; and (4) U.S.

military (to include federalized National Guard).

69. Veronia Stracqualursi, Michigan Closes State Capitol as Protestors Gather Against Stay-at-

Home Order, CNN (May 14, 2020), https://perma.cc/33D3-JKUW.

70. To highlight the political calculus and controversy behind a decision to invoke the Insurrection

Act, note that in the aftermath of Hurricane Katrina, in the midst of widespread violence and destruction,

the Act was not invoked.

71. 10 U.S.C. §253(2) (2018).

72. 10 U.S.C. §252 (2018).

73. Beyond the legal standard, the President appeared to be on the side of the coronavirus protesters,

exhorting state governors to “liberate” their states and open their economies.

74. L

AW ENFORCEMENT, supra note 7, at 7. The U.S. Marshals Service, FBI, and other federal law

enforcement agencies are not part of the armed forces, hence the Posse Comitatus Act restrictions are

not applicable to them.

75. Id.

120 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

Independently of the Insurrection Act, several strong policy concerns argue for

state National Guard forces to continue to serve a leading role in the coronavirus

response. Admiral James Winnefeld (former vice chairman of the Joint Chiefs of

Staff) and Gen. Craig McKinley (former chief of the National Guard Bureau)

have forcefully argued against bringing state National Guards under a federal sta-

tus.

For good reason: governors know their states better than anyone else, are in

the best position to deliver aid, and have preexisting relationships with key play-

ers in their states. This was part of the calculus in keeping the Louisiana National

Guard under state authority during Hurricane Katrina. Instead of federalizing the

National Guard, the federal government should continue to fund the state

National Guard response, utilizing Title 32 when necessary. In 2010, Winnefeld

and McKinley helped untangle a command and control problem through the crea-

tion of a “dual-status commander” in each state that also helps in the military’s

response.

Another reason for continued reliance on non-federalized state forces to main-

tain order is that shifting the Title 10 military to law enforcement duties changes

the rules governing the use of force. Such a change in rules also requires a change

in operational mindset. As a general matter, federal military forces are trained to

use force in armed conﬂict and operational military environments, where they op-

erate under more permissive general or theater-speciﬁc Rules of Engagement

(ROE).

State National Guards operate under different rules for the use of force

promulgated by state chains-of-command. Law enforcement missions for the

military require compliance with more restrained Rules for the Use of Force that

take into account civilian law constraints on the employment of force.

Military

units may not understand the differences in the two sets of rules. Any change in

use of force guidance must take into account the individual training of the mili-

tary unit, as well as its ability to make the shift from a ROE-mindset to a civilian

use of force mindset. This can be challenging, even under the best conditions.

Apart from the Insurrection Act, at least 14 statutes authorize direct participa-

tion in law enforcement under particular speciﬁed circumstances, such as the

unauthorized possession or use of nuclear materials.

Finally, without regard to the Posse Comitatus Act, according to DoD regula-

tions the military (federal or state) possesses the authority to respond to any

request for assistance from states or localities under a continuing “immediate

response authority.”

Military forces may thus be used when time does not per-

mit approval from higher authority under “imminently serious conditions.”

76. Craig McKinley & James Winnefeld, The Right Way to Activate the National Guard,ATLANTIC

(Mar. 21 2020), https://perma.cc/KN7D-6KT6.

77. 32 U.S.C. §325 (a)(2) (2018).

78. C

HMN.JOINT CHIEFS OF STAFF INSTR. 3121.01B, STANDING RULES OF ENGAGEMENT AND RULES

FOR

USE OF FORCE (2005).

79. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985); J

OINT DOCTRINE, supra note 12, at App. B.

80. L

AW ENFORCEMENT, supra note 7, at 15-16; 18 U.S.C. §831(e)-(f) (2018).

81. C

IVIL AUTHORITIES, supra note 1, at 4

82. Id.

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 121

Similarly, DoD regulations give federal military authorities emergency authority

to quell civil disturbances in “extraordinary emergency circumstances.”

In sum, the military’s state-based National Guard response to the coronavirus

crisis is both legally supportable and wise policy, while intervention with federal

military forces would present a variety of important legal and policy questions.

C. Martial Law and Military Pandemic Response: A Legitimate Concern?

Thankfully, initial concerns about a massive federal quarantine and the need

for martial law have abated.

Martial law occurs when the military assumes con-

trol until civil authority can be restored.

Despite its importance, any direct refer-

ence to “martial law” is absent from the Constitution’s text, and only a few court

rulings provide guidance on its legal contours and when it may be lawfully

imposed. Martial law is closely aligned with the public law of necessity, deﬁned

as actions to “safeguard the state against insurrection, riot, disorder, or public

calamity.”

What constitutes necessity remains a question of fact in each case.

In response to the coronavirus crisis, President Trump has repeatedly used mar-

tial language, declaring himself a “wartime president,” arguing that the coronavi-

rus response necessitates a war-like footing.

I brieﬂy address three central legal

issues associated with the imposition of martial law below: (1) martial law’s rela-

tionship to habeas corpus, (2) governing federal authority to impose martial law,

and (3) governing state authority to impose martial law. It seems clear that state

governors actually possess greater legal power than the President to impose mar-

tial law or martial law-style restrictions within their states.

83. Id.at5.See also Id. at 16 (Emergency authority” under DoD directive is described as follows:

A federal military commander’s authority, in extraordinary emergency circumstances where prior au-

thorization by the President is impossible and duly constituted local authorities are unable to control

the situation, [may] engage temporarily in activities that are necessary to quell large-scale, unex-

pected civil disturbances because (1) such activities are necessary to prevent signiﬁcant loss of life or

wanton destruction of property that are necessary to restore governmental function and public order

or (2) duly constituted Federal, State, or local authorities are unable or decline to provide adequate

protection for Federal property or Federal governmental functions.).

84. See, e.g., Joseph Nunn, Can the President Declare Martial Law in Response to Coronavirus?,

HE HILL (Apr. 4, 2020), https://perma.cc/HA4A-XG3C.

85. B

LACK’S LAW DICTIONARY 1063 (Bryan A. Garner ed., 9th ed. 2009).

86. F

REDERICK B. WIENER,APRACTICAL MANUAL OF MARTIAL LAW 16 (1940).

87. Id. “Martial law is the public right of self-defense against a danger threatening the order or the

existence of the state. Where the ordinary authorities—the police—are unable to resist, or subdue a

disturbance, additional force, military in nature may be applied. The extent of military force used

depends in each instance upon the extent of the disturbance.” Id. at 16-17.

88. For a summary and discussion of martial law, its legal implications, and its historical use, see

Stephen Dycus & William C. Banks, Martial Law Would Sweep the Country into a Great Legal

Unknown,A

TLANTIC (Mar. 27, 2020), https://perma.cc/VBM8-R62T.

122 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

1. Martial Law and the Writ of Habeas Corpus

The imposition of martial law is closely tied to the writ of habeas corpus and

when it may be suspended.

The Constitution’s Suspension Clause recognizes

the existence of the right of habeas corpus:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless

when in cases of Rebellion or Invasion the public Safety may require it.

Federal case law addressing the relationship between martial law and habeas

corpus mostly dates from the Civil War-era. At the outbreak of the Civil War in

1861, President Lincoln authorized General Winﬁeld Scott—at the time the head

of the Union military—to suspend habeas corpus on any “military line” between

Philadelphia and Washington.

The military commander in Maryland suspended

habeas corpus there in response to threatening Confederate activity. Immediately

prior to the habeas suspension, Maryland legislators voted against seceding from

the Union, but southern sentiment in the state remained strong. A Baltimore mob

attacked Union troop transports moving through Maryland, raising tensions

between the military, federal government, and the state.

John Merryman, a Baltimore farmer and militia member, was arrested by Army

Brigadier General William H. Keim on charges of treason following the habeas sus-

pension. While Merryman was held at Fort McHenry, Chief Justice Roger B. Taney,

“riding circuit” in the Maryland federal court, ordered the commander to bring

Merryman before the court and show cause for his arrest. The commander refused,

citing the suspension of the writ of habeas corpus authorized by the President.

The

issue before Chief Justice Taney was not whether the writ could be suspended, but

rather who had the authority to suspend it—Congress or the President?

In Ex parte Merryman, Taney found “no ground whatever for supposing that

the president, in any emergency, or in any state of things, can authorize the sus-

pension of the privileges of the writ of habeas corpus, or the arrest of a citizen,

except in aid of the judicial power.”

After all, the Suspension Clause is found in

Article I, not Article II. He referred to the Declaration of Independence in his

opinion, noting that George III’s efforts to “render the Military independent of

89. While it is beyond the scope of this article to address all the legal and historical issues associated

with habeas corpus, historian James McPherson has described the writ as “an ancient Anglo-American

protection against arbitrary arrest and detention that required an arrested person to be brought before a

court to decide the legality of his detention or imprisonment.” J

AMES M. MCPHERSON,TRIED BY WAR:

BRAHAM LINCOLN AS COMMANDER IN C HIEF 27 (2008).

90. U.S. C

ONST. art. I, §9, cl. 2.

91. M

CPHERSON, supra note 89, at 27-28.

92. For a discussion of the historical facts and legal issues in the suspension of habeas corpus in

Maryland, see id. at 27-30.

93. Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487).

94. Id. at 149.

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 123

and superior to the Civil power” was one of the justiﬁcations for dissolving the

colonies’ political allegiance to the Crown.

Later in the Civil War, President Lincoln declared martial law for “rebels and

insurgents,” ordering their trial by court-martial or military commission, rather

than by a civilian court, and suspending the writ of habeas corpus for all persons

held in military custody.

President Lincoln’s suspension of the writ and military

trial of a civilian was struck down by the Supreme Court in one case, however. In

1866, the Court decided Ex parte Milligan, ruling that the President was bound

by congressional limits in denying access to the writ for a Southern sympathizer

sentenced by a military commission to death for insurrection and violation of the

laws of war.

Because those limits were not observed, the Court ruled that the

military commission lacked jurisdiction to try Milligan and ordered his release.

The Court also rejected the argument that a military trial was justiﬁed by the

“laws and usages of war,” as war never existed in Indiana, where Milligan was

arrested, and where citizens “upheld the authority of the government,” and the

courts were “open and their process unobstructed.”

2. Federal Authority to Impose Martial Law

Milligan also rejected the assertion that “martial law cover[ed] with its broad

mantle the proceedings of this military commission.”

The Court then outlined

in dicta most of what we now know about the circumstances that would justify a

declaration of martial law. For martial law to be invoked, the Court stated, the ci-

vilian courts must actually be closed during a “foreign invasion or civil war . . .

where war really prevails . . . [and] there is a necessity to furnish a substitute for

the civil authority, thus overthrown, to preserve the safety of the army and soci-

ety.”

100

In other words, if martial law were justiﬁed, the courts would have to

have been closed by foreign invasion or civil war, and the writ of habeas corpus

would necessarily be unavailable. But martial law could not be used as an excuse

to close the courts or to suspend the writ.

In only one instance has Congress sought to authorize the imposition of martial

law.

101

Whether Congress could limit the authority of the President or military

commanders to declare martial law is unclear. So is the precise scope of the

President’s or a commander’s authority once martial law is appropriately declared.

95. Id. at 152 n.3.

96. Proclamation No. 94, 13 Stat. 730 (Sept. 24, 1862) (ordering that “the writ of habeas corpus is

suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be,

imprisoned in any fort, camp, arsenal, military prison, or other place of conﬁnement by any military

authority or by the sentence of any court-martial or military commission.”). The Statutes at Large

designate the document as Proclamation No. 1.

97. Ex parte Milligan, 71 U.S. 2 (1866).

98. Id. at 76.

99. Id.

100. Id. at 80.

101. Hawaii Organic Act, ch. 339, §67, 31 Stat. 141, 153 (1900).

124 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

Martial law was declared by the governor of Hawaii at the beginning of World

War II pursuant to an express congressional authorization.

102

But in Duncan v.

Kahanamoku, the Supreme Court ruled narrowly that the governing statute did

not enable military trials of civilians.

103

We are ultimately left with only very lim-

ited legal guidance to indicate when the President or a military commander may

invoke martial law, and no law at all to say what rules would apply once martial

law was properly invoked.

3. State and Localized Authority to Impose Martial Law

Finally, under the Tenth Amendment, states possess broad police powers that

could encompass martial law imposition within their respective states.

104

State

and local martial law declarations were once quite common in the United States.

By one estimate, states, cities, and counties imposed martial law 70 times in the

United States between 1857 and 1945.

105

This occurred for a variety of reasons,

including to quell civil unrest or to break strikes at the behest of business inter-

ests. Martial law was last declared by a state in 1966, when the California gover-

nor did so to suppress civil unrest in San Francisco following the shooting of a

Black teenager by a white police ofﬁcer.

106

In sum, states have declared martial law more often than the federal govern-

ment, although such declarations are disfavored in modern times. States have the

military tools at their immediate disposal to impose martial law if the coronavirus

crisis requires it, but so far none has done so. Instead, 50 states have activated

their National Guards, who continue to operate under state authorities, unencum-

bered by the PCA’s prohibition on enforcing the law.

D. Judicial Review of Domestic Military Use

Courts have struggled to determine when, where, and how the military may be

used domestically. The PCA is a criminal statute, but there have been no convic-

tions under it since its passage in 1878. Indeed, the PCA was largely forgotten by

the courts until the mid-twentieth century.

The bulk of the case law since then has addressed two issues. First, a series of

cases growing out the 1973 Wounded Knee uprising tested the limits of the ability

of federal military forces to interact with civilians without violating the PCA pro-

hibition. In decisions highly relevant to the current COVID-19 crisis, courts ruled

that military personnel must not engage in activities that are “regulatory, pro-

scriptive, or compulsory in nature,”

107

that involve “direct, active” use of the mili-

tary in civil law enforcement,

108

or that “pervade[] the activities” of civil law

102. Id.

103. Duncan v. Kahanamoku, 327 U.S. 304 (1946).

104. U.S. C

ONST. amend. X.

105. See Nunn, supra note 84.

106. See id.

107. United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (per curiam).

108. United States v. Red Feather, 392 F. Supp. 916, 923 (D.S.D. 1975).

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 125

enforcement ofﬁcers.

109

These criteria have since been incorporated into DoD

doctrine for military support of civilian law enforcement.

110

One court held that

intelligence collection or seizures by troops would be unreasonable under the

Fourth Amendment if they violated these criteria, and thus the PCA.

111

Second, innovative criminal defense attorneys have sought to exclude evidence

collected by military personnel in violation of the PCA. Their efforts have been

largely unsuccessful.

112

Courts have not yet addressed the scope of the President’s authority to use fed-

eral military forces in responding to a pandemic under the Public Health Safety

Act, Stafford Act, or National Emergencies Act. But what if a President sought to

go beyond these delegated statutory authorities by invoking a generalized Article

II or inherent Commander-in-Chief power?

113

The cases raise a host of questions

about the scope of such powers.

In April 2020, President Trump intimated that in order to protect the economy

and various individual liberty interests, he was going to take steps to override

state stay-at-home orders.

114

He did not say that he would use federal military

forces to do so. But if he did, he would ﬁrst have to confront a core constitutional

problem. Under the Tenth Amendment, states retain police powers within their

respective states. Such authority is “reserved to the States” under the Tenth

Amendment.

115

To be sure, a presidential order might assert as its basis the protection of inter-

state travel under the Commerce Clause. But Congress has already exercised its

Commerce Clause authority to address public health emergencies via the PHSA

and other laws, and its statutes contemplate federal augmentation, but not sup-

pression, of state measures to control the spread of infectious diseases. And while

Congress has not expressly prohibited federal suppression of such state measures,

courts might nevertheless analyze any such separation of powers struggle through

the lens of Youngstown Sheet & Tube Co. v. Sawyer, the seminal separation of

powers case addressing the President’s authority to seize steel mills at the height

of the Korean War.

116

If the President sought to expand or override statutorily

delegated authorities, he would have to “rely only upon his own constitutional

powers minus any constitutional powers of Congress over the matter.”

117

109. United States v. Jaramillo, 380 F. Supp. 1375, 1379 (D. Neb. 1974), appeal dismissed , 510 F.2d

808 (8th Cir. 1975).

110. See generally L

AW ENFORCEMENT, supra note 7.

111. Bissonette v. Haig, 776 F.2d 1384, aff’d, 800 F.2d 812 (8th Cir. 1986) (en banc), aff’d, 485 U.S.

264 (1988).

112. See, e.g., Hayes v. Hawes, 921 F.2d 100, 104 (7th Cir. 1990).

113. The President possesses executive authority via the vesting clause and has additional authorities

under the Take Care clause. U.S. C

ONST. art. II, §1, cl. 1 & §3. A full examination of the scope of these

authorities is beyond the scope of this article.

114. Lisa Lerer & Kenneth Vogel, Trump Administration Signals Support for Allies’ Fight Against

Virus Orders, N.Y. Times (Apr. 29, 2020), https://perma.cc/J32X-P8PB.

115. U.S. C

ONST. amend. X.

116. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

117. Id. at 637 (Jackson, J., concurring).

126 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

Any effort by the President to use troops to override state stay-at-home orders

would be even more problematic. In his famous concurring opinion in

Youngstown, Justice Jackson made clear that he would “indulge the widest lati-

tude of interpretation to sustain [the Commander in Chief’s] exclusive function to

command the instruments of national force . . . [when] turned against the outside

world for the security of our society.”

118

He would allow no such indulgence

when those same powers were applied inward, however. Courts today might thus

balk at the President’s use of federal military forces to overcome states’ efforts to

protect their citizens during the COVID-19 pandemic.

III. M

ILITARY AS RELIEF PROVIDER:SUPPORT TO CIVIL AUTHORITIES

Outside the law enforcement context, the U.S. armed forces provide emer-

gency logistical and humanitarian services, and relief supplies. This domestic hu-

manitarian assistance/disaster response (HADR) mission is inextricably linked to

DoD doctrine called Defense Support to Civil Authorities (DSCA).

119

Under the

National Defense Strategy, DSCA is a primary mission for the military.

120

Unlike

the law enforcement mission—which is informed by the Constitution, statutes,

and regulations—the contours of the DSCA mission are largely promulgated via

military instructions, directives, and doctrine. DoD deﬁnes the mission broadly:

Support provided by US Federal military forces, Department of Defense civil-

ians, Department of Defense contract personnel, Department of Defense com-

ponent assets, and National Guard forces (when the Secretary of Defense, in

coordination with the governors of the affected states, elects and requests to

use those forces in Title 32, United States Code, status) in response to requests

for assistance from civil authorities for domestic emergencies, law enforce-

ment support, and other domestic activities, or from qualifying entities for spe-

cial events.

121

So DSCA encompasses a large swath of activities and personnel (federal, state,

uniformed, civilian, and contract). Perhaps not surprisingly, there are far fewer

restrictions governing what the military may do in providing emergency and hu-

manitarian relief than in supporting law enforcement. When the military is

actively taking part in relief operations, the real and perceived threat to civil liber-

ties is substantially reduced. The military is a resource and logistical support pro-

vider, playing a support role to civil authorities. In this capacity, the military

poses less risk of taking over civilian functions.

122

118. Id. (emphasis added).

119. See C

IVIL AUTHORITIES, supra note 1. To be sure, “Defense support to civil authorities” also

includes law enforcement support, but the focus here is on the military’s ability to provide relief

supplies.

120. Id.

121. J

OINT CHIEFS OF STAFF,JOINT PUB.NO. 1-02, DODDICTIONARY OF MILITARY AND ASSOCIATED

TERMS 62 (2020).

122. J

OINT DOCTRINE, supra note 12, at I-5.

2020] DOMESTIC MILITARY OPERATIONS AND THE PANDEMIC 127

The military’s response to the coronavirus crisis—whether conducted by Title

10 or non-federalized National Guard forces—has so far centered on supporting

state and local authorities by various means. The numbers bear this out. DoD has

provided 57,500 DoD personnel, 1,100 medical personnel, twenty million N95

masks, eight million test swabs, and 2,000 ventilators.

123

The Corps of Engineers

built a temporary hospital at the Javits Center in New York City, and the U.S.

Navy hospital ships Comfort and Mercy sailed to New York and Los Angeles,

respectively.

Health services is a core DSCA mission, with the goal “to restore essential

health services in collaboration with the state and local health authorities.”

124

contrast to the limited role played by federal military forces in this crisis, the

National Guard, acting under the command of state governors, can and should

play a major part. The military response overall should continue to be federally

supported, state-managed, and locally executed.

ONCLUSION

The U.S. armed forces’ primary mission is to ﬁght and win the nation’s wars.

For the last century and a half, these have been fought abroad. The September 11

attacks on the Pentagon and World Trade Center dramatically changed the war-

ﬁghting framework to encompass both extraterritorial and domestic dimensions.

Terrorists, non-state actors, and cyber threats do not respect neat geographic dis-

tinctions, and the military’s mission can change rapidly in response to these and

even newer new threats. The U.S. military thus maintains a critical role in both

homeland defense and homeland security.

125

The military’s response, both state and federal, to the coronavirus pandemic

thus far highlights the continuing durability of longstanding notions of civilian

control of the military and the military’s ability to provide aid. It has largely side-

stepped concerns that domestic military operations pose a threat to civil liberties.

The state-based National Guard has served as the military face of the response up

to this point. While the military’s response has not been perfect, criticism of it

has centered more on bureaucratic struggles than on heavy-handed military

enforcement. This bodes well for future military roles in domestic operations and

responses to emergencies, whether pandemics, natural disasters, or climate

change-exacerbated wildﬁres.

The military’s coronavirus response has thus been measured. While earlier

concerns about a military role in enforcing national quarantines or martial law

123. See COVID Response, supra note 6.

124. J

OINT DOCTRINE, supra note 12, at xii.

125. DoD deﬁnes “homeland defense” as “the protection of U.S. sovereignty, territory, domestic

population, and critical defense infrastructure against external threats and aggression, or other threats

directed by the President.” J

OINT CHIEFS OF STAFF,JOINT PUB.NO. 3-27, HOMELAND DEFENSE vii (July

29, 2013).

128 JOURNAL OF NATIONAL SECURITY LAW &POLICY [Vol. 11:107

have abated, unrest related to George Floyd’s death has continued, keeping the

issue of the military’s role in domestic operations in the public consciousness.

Longstanding constitutional norms and historical conceptions of civilian control

of the military have so far prevailed. Nevertheless, the current crisis presents an

opportunity to reexamine the laws, policies, and regulations governing domestic

military operations, allowing—or forcing—us to consider afresh the armed

forces’ role in domestic affairs.

2020] D

OMESTIC MILITARY OPERATIONS AND THE PANDEMIC 129

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