In a brazen assault on the bedrock principles of American democracy, the current administration is attempting to sell the public a constitutional fairy tale, asserting that the President holds unchecked power to turn the military against its own people.
This assertion, as flimsy as it is frightening, cannot withstand even a whiff of scrutiny from the very experts who have dedicated their lives to the rule of law.
The notion that a president can deploy troops on American soil with the same imperial discretion he holds on a foreign battlefield is a fraud—a constitutional perversion that would make the Founders recoil in horror.
The chorus of legal scholars sounding the alarm is not composed of naïve idealists but of hardened experts in the grim realities of armed conflict.
Mitt Regan, the McDevitt Professor of Jurisprudence at Georgetown and a scholar who has dissected the impacts of drone strikes and targeted killings, understands the weight of presidential power in war.
Claire Finkelstein, a professor of both law and philosophy at the University of Pennsylvania, brings a razor-sharp analytical lens to the ethics of national security.
Benjamin R. Farley, drawing on his hands-on experience with the Guantanamo Bay military commissions and terrorist detentions at the State Department, knows precisely where the lines of lawful authority lie.
Brenner M. Fissell, a professor at Villanova Law who has served as defense counsel at the Guantanamo commissions, has stared into the abyss of military justice and understands its proper limits.
For this diverse group to unite in condemnation is a testament to the sheer audacity of the power grab at hand.
Yey, they write: “The Government’s position cannot withstand even rudimentary analysis. This is because the president’s authority is dramatically weaker when deploying troops domestically than it is when fighting enemies overseas.”
The government’s lawyers, with a straight face, argue that the President’s decision to send troops into American cities is a matter of unreviewable “discretion,” a claim that collapses under the slightest historical pressure.
“The government’s interpretation suggests that a president may deploy military forces anywhere in the United States for any reason, and that courts would have no authority to determine its legality,” said the four legal professors. “This assertion runs counter to U.S. history, the structure of powers related to the military in the U.S. Constitution, and the theory of checks and balances.”
The Declaration of Independence itself was a bill of particulars against a king who “kept among us, in times of peace, Standing Armies without the Consent of our Legislature.”
The Framers, having fought a revolution against such tyranny, meticulously distributed power over the military.
They gave Congress the purse strings and the power to declare war, left the states with their militias, and tasked the judiciary with protecting the rights of the people.
To suggest that they intended to create a single executive who could ignore this entire structure and unleash the military on his own citizens is not just wrong—it is an insult to their legacy.
The legal scholars explicitly compare Trump’s unlawful misconduct to the King’s offenses listed in the Declaration of Independence.
“Among the grievances enumerated in the Declaration of Independence, abuse of the military was a persistent theme: ‘He has kept among us, in times of peace, Standing Armies without the Consent of our Legislature,’ and ‘He has affected to render the Military independent of and superior to the Civil Power.'”
This is not about foreign enemies; it is about the “enemy within,” a phrase chillingly deployed by the President himself.
When the military is ordered into the streets of Chicago or Portland, it is not to secure rights but to suppress dissent under the flimsy guise of an emergency.
The 1878 Posse Comitatus Act stands as a direct rebuke to this very conduct, forbidding the use of the military for domestic law enforcement.
The Insurrection Act itself is not a blank check for a president to cash for his own political ends; it is a tool to be used when a state is unable to protect the constitutional rights of its people.
Finkelstein, Fissell, Regan, and Farley boldly assert that: “the power of the president to use the military in times of emergency is arguably tethered to the need to protect the constitutional rights of the people.”
Using it to quell political opposition turns this purpose on its head, making the state the instrument of rights deprivation rather than its protector.
The call for judicial “deference” in such a circumstance is a demand for surrender.
Courts are not duty-bound to bow before a presidential decree when that decree threatens the very liberties they are sworn to protect.
To equate the deference owed in a foreign war with the vigilance required when soldiers patrol American neighborhoods is both a logical and moral failure.
The oath of a U.S. military officer is to the Constitution, not to a person.
The slide into authoritarianism is often facilitated by the corruption of the military, by convincing soldiers to view their fellow citizens as the enemy.
We have seen this tragic play before, in history books and in news reports from nations where democracy has gasped its last breath.
Finkelstein, Fissell, Regan, and Farley argue: “Extreme deference to the president’s domestic use of the military abdicates the fundamental duty of courts to closely examine threats to fundamental constitutional rights of free speech and assembly that are the bedrock of a democracy.”
The Supreme Court now stands at a precipice. It can either act as the constitutional bulwark the Framers intended or become a silent accomplice to the erosion of civilian control.
To grant extreme deference here is to render the judiciary irrelevant and to invite a future where the sword, not the gavel, has the final say.
The Supreme Court must remember its own words: it cannot allow “actual or threatened injury by reason of unlawful activities of the military” to go “unnoticed or unremedied.”
The American experiment was not meant to end with a president commanding troops against his own people while the courts simply look the other way.
“Military rule and military coups have been fanciful, far-off threats in the United States, but President Trump has now made this threat real in his war against ‘the enemy within.’ The Supreme Court must not shirk its obligation to ensure that presidents cannot conscript the military in an effort to undermine democracy,” they write with crystal clarity.
The last defense against a military police state is an American judiciary with the courage to say no.