Vt. legal expert says Trump’s authority to call in military limited

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BURLINGTON, Vt. (WCAX) Vermont legal experts say President Trump’s authority is limited when it comes to calling in the military to stop protests.

President Trump this week on a phone call with governors urged them to take tougher action on protesters in the wake of the death of George Floyd in Minneapolis.

“I have strongly recommended to every governor to deploy the National Guard, in sufficient numbers, that we dominate the streets,” Trump said. "If a city or state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the U.S. military and quickly solve the problem for them."

Jared Carter, a constitutional law professor with the Vermont Law School, says due to two laws written in the 1800s, President Trump’s authority to send troops to American streets to address the unrest is limited.

“He can certainly tweet that. The First Amendment protects his right to say whatever he wants. I think there’s a whole slew of laws and rules that would prevent him from doing that. Namely, a law called the Posse Comitatus Act from the 1870s that actually comes out of reconstruction from the Civil War,” Carter said. “But essentially what it says is that the U.S. military should not be -- cannot be -- involved in domestic law enforcement, and so I think that would be a very high bar for the president to overcome.”

Carter says the Insurrection Act of 1807 also prevents the president from deploying troops to the states. Carter says the Insurrection Act allows the president to use military forces domestically, but only in very limited circumstances such as if a state’s government collapsed entirely and people started raising insurrection and rebellion to the point local law enforcement could no longer handle the lawlessness.

Carter says he doesn't think any of the states have reached that point. When it comes to the legalities of protesting, Carter says protests and peaceful assemblies are covered by the First Amendment, but riots are not. Once people start damaging property or committing crimes, they're essentially giving up that constitutional protection.

“The First Amendment of the United States Constitution protects the fundamental right to freedom of speech and political assembly. And in fact, political speech – the courts have held time and again - is speech that is the most protected form of speech and that includes peaceful assembly and protests, because historically, that’s how we’ve gotten change in this country,” said Carter. “It is a fundamental First Amendment right to engage in protest. That being said, the First Amendment does not protect - as a general principle - acts. It protects speech. It protects peaceful assembly. So, once an individual or group of individuals crosses that line from peaceful protest, speaking, demonstrating, or rioting, or breaking windows, or doing property damage or trespass, then those are not generally protected by the First Amendment. It protects speech. It protects peaceful assembly.“

Carter says the states have the power to call in the National Guard in response to protests.