The march to martial law has fewer obstacles than you realize

A president can cite numerous laws, executive orders and national security directives that allow for radical executive action

PORTLAND, OR - JULY 21: A federal officer tells the crowd to move while dispersing a protest in front of the Mark O. Hatfield U.S. Courthouse in Portland. State and city elected officials have called for the federal officers to leave Portland as clashes between protesters and federal police continue to escalate. Photo by Nathan Howard/Getty Images.

President Trump’s use of federal officers to conduct law enforcement operations in Portland — and his threat to bring them to other U.S. cities, including Chicago — is just a taste of things to come.

As he showed in Lafayette Square, Trump has no compunction about calling on federal forces to further his political ends.

And Trump can invoke any number of statutes, executive orders and national security directives to justify his march to martial law.

As Gary Hart noted in a recent op-ed in The New York Times, the National Emergencies Act of 1978 grants the President 123 statutory powers. These include the power to “unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects,” Elizabeth Goitein of the Brennan Center pointed out in The Atlantic in 2019.

The powers also include the ability to shut down radio stations and control or shut down the internet.

The Brennan Center has published a guide to presidential emergency powers, which you can find here.

It’s not just the National Emergencies Act that gives a president enormous leeway.

The Insurrection Act of 1807 allows the president unilaterally to use troops domestically if “rebellious activity” has made it “impracticable” to enforce federal law “through regular means” or because the president “deems it necessary to suppress insurrection, domestic violence, unlawful combination, or conspiracy.”

Trump hasn’t invoked the Insurrection Act to justify placing federal forces in Portland, but he could, by citing “domestic violence” or the even vaguer term “conspiracy” and by claiming that “regular means” aren’t quelling the violence.

What Trump has done, instead, is to lean on his executive order of June 26, wherein he writes that local leaders and local law enforcement “have lost the will or the desire to stand up to the radical fringe” and “defend the fundamental truth that America is good, her people virtuous, and that justice prevails in this country to a far greater extent than anywhere else in the world.”

Section 5 of this executive order specifies that federal forces, including those of the Pentagon, may be used domestically: “Upon the request of the Secretary of Interior the Secretary of Homeland Security or the Administrator of General Services, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall provide, as appropriate and consistent with applicable law, personnel to assist with the protection of Federal monuments, memorials, statues, or property.”

In that executive order, Trump vows to “prosecute to the fullest any person or entity” that “destroys, damages, vandalizes or desecrates a monument, memorial, or statute.”

He also vows to “prosecute to the fullest any person or entity that participates in efforts to incite violence or other illegal activity” in connection with the above. Note how vague this is. “Inciting violence” is vague enough, and often runs afoul of the First Amendment. But the language here is even worse since it says “participates in efforts to incite violence” rather than simply “incites violence,” and because it includes unspecified other “illegal activity.”

Trump could round up a lot of people and a lot of groups — including Black Lives Matter — with this vague language.

In a sop to his religious base, Trump also said he would “prosecute to the fullest any person or entity that damages, defaces, or destroys religious property… including by attacking, removing, or defacing depictions of Jesus.”

Short of invoking the Insurrection Act, Trump could be in violation of the Posse Comitatus Act, which 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.”

Of course, the Justice Department holds that the president can’t be prosecuted while in office, so that threat of punishment may be insignificant to Trump. Plus, he could cite the opinion of then-Deputy Assistant Attorney General John Yoo, who wrote after 9/11 that the Posse Comitatus Act “does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States.”

Which might explain why Trump refers to Antifa as a “terrorist group” and why Rudy Giuliani refers to Black Lives Matter as a “terrorist organization.”

Trump could also invoke National Security Presidential Directive 51/Homeland Security Presidential Directive 20, which President George W. Bush signed on May 4, 2007. This is an expansive grant of power to the president in case of a “catastrophic emergency,” and it places the president ahead of Congress and the judiciary. The president, it says, will coordinate a “cooperative effort among the executive, legislative, and judicial branches.” And it authorizes the anointment of a “National Continuity Coordinator,” a position to be held by whoever is the assistant to the president for homeland security and counterterrorism. That person is not only authorized to devise procedures for the executive branch but is also instructed to give guidance to “state, local, territorial, and tribal governments, and private sector owners and operators of critical infrastructure.” (The directive has classified annexes that Rep. Peter DeFazio, D-Ore., in 2007 asked to see as a member of the House Committee on Homeland Security, but he was denied access to the annexes.

Here, by the way, is how the directive defines “catastrophic emergency”:

“Any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption, severely affecting the U.S. population, infrastructure, environment, economy, or government functions.”

Trump could easily say that the COVID-19 pandemic represents just such a catastrophic emergency, since there are certainly “extraordinary levels of mass casualties” as well extraordinary “damage” to — and “disruption” of — our economy. The president alone, under this directive, has the authority to declare a “catastrophic emergency.”

Evidently, the Department of Homeland Security has been preparing for martial law for a while. According to Goitein of the Brennan Center, a Department of Homeland Security report from 2007 explicitly mentions “martial law” as one of the “critical tasks” in case of an emergency.

Trump isn’t likely to hold a press conference one day and explicitly declare himself dictator. But it’s quite conceivable that he could hold a press conference one day, with Attorney General William Barr standing right beside him, and invoke emergency powers by citing these statutes and executive orders and directives and make it all sound perfectly legal.

And then our storied system of checks and balances would go up in smoke.