President Trump declared the Chinese Wuhan Virus (COVID-19) pandemic a national emergency on March 13. National Guard personnel in over 25 states have already been called up by their Governors to aid efforts to stop the spread. However, as the virus continues to move across the U.S., some lawmakers have begun calling for deeper U.S. military involvement in managing this health crisis. Could this lead to martial law?
“I would call out the military now,” former Vice President Joe Biden said, reports The Hill. “They have the ability to provide this surge that hospitals need. They have the capacity to build 500 hospital beds and tents that are completely safe and secure.”
Others insist that involving the military now would be counterproductive and there is no plan for martial law. This has led to disinformation and confusion.
Florida Sen. Marco Rubio tweeted, albeit with a glaring spelling error, a request to stop sharing misinformation about martial law. He wrote, “Please stop spreading stupid rumors about marshall law. COMPLETELY FALSE. We will continue to see closings & restrictions on hours of non-essential businesses in certain cities & states. But that is NOT marshall law.”
The reality is there is a wide range, in-between doing nothing and imposing federal martial law, where U.S. military forces, or state-led National Guard units could be employed in support of this national emergency.
And while some are pushing for a more robust federal response short of martial law, including a national quarantine and/or a “lockdown,” the states are far better suited to take emergency actions like these in their jurisdictions.
There’s no U.S. federal authority “to force everybody everywhere to stay home,” says Elizabeth Goitein at the New York University School of Law. “While the federal government has the power to implement quarantines to prevent communicable diseases from entering the country or from spreading between states, state and local quarantine powers can also be quite broad,” Goitein was quoted in Barrons, and quarantine decisions within U.S. borders have generally been left to the states.
On Sunday the National Security Council rejected the idea of a national quarantine.
This is generally the best approach. Rather than imposing a national quarantine, the federal government’s role is more likely to be delivering the message that “as Americans, we all have the responsibility to protect the most vulnerable by limiting our interactions,” Michael Coen, a former chief of staff at the Federal Emergency Management Agency (FEMA), said in Barrons.
“The American people, when given all the facts and information, will take responsibility,” he says.
If enforcement is required, the National Guard led by their state governors is best suited to handle crises in their individual states. That’s their primary mission. As reported by the Military Times, “the National Guard is expecting a rapid increase in unit activations over the next few weeks, leaders at the Pentagon said Thursday, filling roles like coronavirus testing and potentially law enforcement.”
If the president wanted to, he could mobilize the National Guard under a Title 10 authorities, though Guard leaders aren’t advising that move, said Air Force Gen. Joseph L. Lengyel, chief of the National Guard Bureau in the Military Times.
“That would not make sense in this situation,” Lengyel said, adding that it’s better to leave Guard units under the command and control of each governor. “Every state has a different way to deal with disasters. … If you were to federalize them, you’d lose some of those abilities.”
One critical capability that would be lost if the Guard is federalized is their ability to operate as law enforcement to assist state officials, Lengyel said, as that would violate the 1878 Posse Comitatus Act that prevents the Department of Defense from participating in domestic policing. Only the National Guard under state control can conduct domestic policing in their state.
There is one loophole to this domestic military use prohibition – created in 2006 following Hurricane Katrina. As noted by the Military Times, the 2007 John Warner National Defense Authorization Act gives the president the power to take command of National Guard units under the guise of martial law without the approval of state governors until its expiration a year later. Hopefully, this will not be necessary.
For now, expect the states to be taking the lead in quarantine actions and enforcement, with the federal government providing national guidance and controlling the international and inter-state components of the pandemic. Any troops you may see on the streets will most likely be your state National Guard, as in any other emergency.