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Banks Discusses the Insurrection Act, Trump’s Proposed Use of the Military in AP Article

December 10, 2023

The Associated Press

William C. Banks

William C. Banks

While campaigning in Iowa this year, Donald Trump said he was prevented during his presidency from using the military to quell violence in primarily Democratic cities and states.

While Trump has not spelled out exactly how he might use the military during a second term, he and his advisers have suggested they would have wide latitude to call up units. And experts say the Insurrection Act would allow Trump as commander in chief almost unfettered power to do so.

The Insurrection Act allows presidents to call on reserve or active-duty military units to respond to unrest in the states, an authority that is not reviewable by the courts. 

William Banks, professor emeritus of public administration and international affairs, says a military officer is not forced to follow “unlawful orders.” That could create a difficult situation for leaders whose units are called on for domestic policing, since they can face charges for taking unlawful actions.

“But there is a big thumb on the scale in favor of the president’s interpretation of whether the order is lawful,” Banks says. “You’d have a really big row to hoe and you would have a big fuss inside the military if you chose not to follow a presidential order.”

Read more in the Associated Press article, “Trump hints at expanded role for the military within the US. A legacy law gives him few guardrails.”

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