After President Donald Trump threatened to send military troops into Baltimore and other cities under the pretext of battling violent crime, Gov. Wes Moore has argued he has authority over Maryland’s National Guard and its missions.
“I am very clear,” Moore told CNN’s Kaitlan Collins on Tuesday. “I am the commander-in-chief of the Maryland National Guard, not him.”
Moore’s isn’t wrong, though he’s choosing his words carefully.
He has authority over Maryland’s National Guard, given to him by the state constitution and federal law. But so does the president.
Trump deployed troops in Los Angeles in June and Washington, D.C., this month, and he has said he wants to do the same in other Democrat-run cities. So could he do this in Baltimore?
The short answer: probably yes, according to experts specializing in military law, but not without testing his legal authority.
The pathways to putting troops in Baltimore, whether they’re from Maryland or another jurisdiction, are loaded with if-then and wait-and-see scenarios.
In most cases, the governor must consent to the president using a state’s military or sending it to another state. But Trump has proven to be a president who acts first and lets the courts sort it out later, and experts say we’re drifting into uncharted territory.
Here’s what they’re watching and why.
Could Trump put troops in Baltimore?
The answer hinges on multiple factors.
“The legality of any use of the armed forces domestically is dependent upon which armed forces you’re using, where you are using them and what you are using them for,” said John Dehn, an associate professor and faculty director for the national security and civil rights program at Loyola University Chicago’s School of Law.
Moore can authorize the Maryland Guard’s deployment in times of crisis, such as a natural disaster, within Maryland or to other states at the request of the president or another governor.
The Guard can be used to calm civil unrest, as former Gov. Larry Hogan did in 2015 during the uprising following the death of Freddie Gray and former Gov. Spiro Agnew did following Martin Luther King Jr.’s assassination in 1968. Maryland’s National Guard troops were also used during the state’s response to the COVID pandemic.
In D.C., which is not a state, the president controls the Guard the same way governors control their militaries.
Governors from a handful of red states have voluntarily sent their troops to D.C. under a federal law that permits the federal government to pay the troops while they’re carrying out a federal mission.
Governors cannot decide to send troops to another state without the other governor’s permission.
That would be an invasion and a violation of a state’s sovereignty under the Constitution, according to Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program.
“It’s never happened because it is so plainly unconstitutional,” Goitein said in a virtual press briefing on Trump’s actions.
There are exceptions, however, when the president can take over, or federalize, National Guard troops under a section of law called Title 10. Most, but not all, require a governor’s permission.
A common reason for federalizing a state’s National Guard is to deploy it overseas. Less often used reasons are to protect federal personnel while they work or to protect federal property.
There’s little legal precedent for what happens when governors push back on federalizing the guard, experts say, and they’re closely watching an example of this playing out on the West Coast.
Gov. Gavin Newsom has failed in the courts to stop Trump after he took over California’s National Guard in June.
Trump federalized thousands of California’s Guard members and sent them to Los Angeles to protect federal agents conducting immigration enforcement and to protect federal buildings from people protesting those actions.
Newsom said Trump shouldn’t be allowed to do this without his permission, but the courts have sided with the president.
The Democratic governor’s current appeal challenges whether Trump violated a post-Reconstruction-era law, called the Posse Comitatus Act, which prohibits the military from acting as law enforcement against civilians. A federal judge has yet to make a final ruling.
Dehn and others are closely watching the outcome, he said, because it could clarify whether the Trump administration has the authority it has claimed.
Claiming an insurrection
The Posse Comitatus Act is meant to serve as a buffer between the military and civilian life, and it plays a key role in the president’s authority to use troops as law enforcement.
There are rare exceptions when a president can bypass the Posse Comitatus Act and deploy a federalized military for law enforcement purposes. One of them is the Insurrection Act.
Invoking the Insurrection Act, Dehn said, would be the quickest way for Trump to put boots on the ground in Baltimore, and there are sections that allow the president to act without a governor’s permission.
President Dwight D. Eisenhower, for example, invoked the Insurrection Act in 1957 when he sent U.S. Army paratroopers to Little Rock, Arkansas, to protect Black students as the city desegregated a high school. Leading up to that, the city had erupted in racist segregationist protests, with Arkansas’ governor using the state’s National Guard to block the students’ entry.
Eisenhower justified the action because he was removing an obstruction of justice and protecting the students’ civil rights, according to the order.
But there’s nothing remotely close to that happening in Baltimore. Trump has hinted he’ll send the Guard to Baltimore, and other Democrat-led cities, to help control crime, though homicides and other crimes are declining.
Democratic governors, including Moore, have called that “an alarming abuse of power.”
Adam Flasch serves as Moore’s deputy chief of staff as an expert on matters of public safety and homeland security. He’s served for more than three decades in Maryland’s National Guard and retired as a brigadier general.
Flasch said the use of the Insurrection Act typically involves considering the scale of the emergency.
“The question is, what is the actual emergency?” he said. “And significant reductions in crime in urban centers doesn’t ring true as an emergency.”
But legal experts with the Brennan Center for Justice have argued the Insurrection Act “provides the president with almost limitless discretion to deploy the military domestically.” They say the law, pieces of which are nearly as old as the country itself, requires updating.
Some speculate an attempt could be made to circumvent the Posse Comitatus Act by saying a state with a crime problem, as Trump has labeled Baltimore, is failing to protect its citizens’ rights and freedoms under the Constitution.
Trump could act and put governors on their heels to respond. An executive order issued Monday asks the Department of Defense to make sure state National Guards are “resourced, trained, organized, and available” to help law enforcement with public safety and that there is a National Guard force that can respond quickly nationwide.
The White House declined to answer questions about the president’s plan for Baltimore, but an official referred a reporter to the president’s earlier comments in which he called the city a “hellhole.”
Update state laws
Moore has adamantly opposed Trump’s threat to put troops in Baltimore and has said the plans underway in D.C. are unsustainable, expensive and disrespectful to the military members.
“I will not authorize the Maryland National Guard to be activated for something that is either not mission critical or mission aligned,” he told CNN’s Collins.
He’s sent an open invitation to Trump to tour Baltimore. Moore said he’d welcome “an honest conversation” with the president about what’s working and what’s not without being “theatrical.”
But Trump swatted away a stroll through the city and told Moore he’d need to “clean up his crime mess” first.
As a former Army captain, Moore said, he understands the obligation of the Guard to obey lawful orders and its right to disobey unlawful ones, including those from the president.
Dehn, the law professor, said he’s working through legal theories on what governors can and can’t do to push back on federal authority over a state’s military.
He has advice.
“One of the things that I would encourage governors to do is make sure that whatever authority they think they have is enacted during the next legislative session, maybe an emergency legislative session,” he said. “In other words, if it’s not expressly in your state law, it would be a really good idea to put it there.”
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