Not military justice . . . yet

Scott R. Anderson's timely essay The Real Legal Limits on Domestic Military Deployments is available on Lawfare. Excerpt:

These legal constraints by no means suggest that domestic deployments cannot be abused. Nor do they counteract the psychological significance of even legal domestic military deployments, which may intimidate Americans and chill legitimate exercise of rights. But they do set limits on some of the most abusive ways presidents may try to use domestically deployed soldiers.

As an example, take [President-elect Donald J.] Trump’s recent suggestion that the military should be used to guard against “[r]adical left lunatics” and other “enem[ies] from within” on Election Day—a comment that has been widely criticized as a veiled suggestion that, if reelected, he may well use domestic military deployments to impact elections in 2026 or 2028. Deploying armed and uniformed personnel at polling locations would put those involved in violation of federal law. And any effort to interfere with those elements of election management vested in state authorities by the Constitution—for example, by seizing ballot boxes—would almost certainly be in excess of federal law and thus ripe for a potential injunction.

Of course, these legal restrictions will require litigation and judicial enforcement to be effective. But federal courts can move quickly where needed, including by issuing preliminary injunctive relief that can serve to minimize the harms of presidential abuse pending a final resolution of the underlying legal questions. And as post-2020 election challenges served to demonstrate, the federal courts—and even the current Supreme Court—remain tough terrain for those seeking to curb election results in a way that is clearly contrary to federal law.

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Indeed, understanding these legal limitations could be particularly important for members of the military who may themselves be domestically deployed. The military justice system imposes serious penalties on members of the armed forces who disregard the chain of command, which runs through the military and Defense Department up to the president. But this obligation only extends to “lawful order[s]” and the fact that an order is unlawful can be a defense for refusing to obey. This does not mean that soldiers can employ their own judgment as to what is legal or not in deciding whether to follow or disregard orders, as there is a strong presumption in favor of the president’s interpretation of the law. But where soldiers are presented with an order that clearly runs contrary to widely understood legal limits—particularly where that understanding is backed up by an injunction or other judicial order—they may well have grounds (if not a legal and ethical obligation) to disobey.

The Orders Project's Sourcebook for Advising Military Personnel (3d ed. Aug. 2024) gathers pertinent information on unlawful-orders issues.