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As the effects of COVID-19 are increasingly felt around the United States, many officials and commentators have asked what role the U.S. military might play as part of the response. Several state governors have already called up elements of the National Guard as part of their emergency measures. This analysis addresses the distinctive roles of U.S. federal military forces and state National Guard units, the ways U.S. forces could be most helpful, the limitations on military forces, and the potential cost of employing the military to help fight the coronavirus.
When troops are used domestically, the matter of “authorities” becomes paramount. The Posse Comitatus Act, passed in 1878 in response to reconstruction of the South, forbade federal troops from participating in law enforcement. As a result, the federal government has been very reluctant to use active-duty troops in situations where they may interact with citizens. Federal troops can be used domestically under the Insurrection Act of 1807 to suppress lawlessness, insurrection, and rebellion and have been so used in rare situations, for example the Los Angeles riots of 1992. That authority is intentionally narrow and would not seem to allow federal troops to be used in a humanitarian situation like suppressing a pandemic. However, lawyers can be quite imaginative in finding ways to stretch statutory text.
The National Guard, being the successor to the state militias, is not restricted by Posse Comitatus and can, in theory, enforce the law (as can the Coast Guard). Thus, it is the National Guard that is used most commonly in extremis to suppress riots. It could, in theory, enforce quarantines on communities.
However, states are reluctant to use the National Guard in this way because soldiers make bad police officers. Soldiers are heavily armed and taught to regard the population as “threats.” Police officers are lightly armed and trained to protect the citizenry. Using soldiers for law enforcement entails the risk of abuse and misunderstanding. Post-Katrina New Orleans provided a good example of this when General Honore barked at troops to put down their guns. Thus, the National Guard troops on the Southwest border could, in theory, apprehend illegal immigrants but don’t. That is left to the Border Patrol, whose officers have the necessary training.
Instead, the National Guard and federal troops have typically provided support to humanitarian assistance and law enforcement organizations rather than interact directly with the citizenry.
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