Tom Cotton Insurrection Act Debate: Don’t Invoke It Now, Don’t Smear Its Advocates as ‘Fascist’



(Jonathan Ernst/Reuters)

A  vigorous argument has erupted over the proper way to restore order in the face of riots, arson, and looting following the death of George Floyd. Should local police be supplemented by the National Guard, or by the Army, or would that make things worse?

Tom Cotton led the charge for the “Send In the Troops” position in a much-debated op-ed for the New York Times. Cotton is right that federal law gives the president the authority to use military force against domestic disorder. That authority is explicitly laid out in the Constitution, has been invoked and incorporated in federal legislation dating all the way back to George Washington’s presidency, and is currently governed by the Insurrection Act passed in 1807 and signed into law by Thomas Jefferson. Abraham Lincoln used the army to restore order in New York’s draft riots in 1863, dispatching combat veterans directly from the battlefield in Gettysburg. In modern times, the Insurrection Act has been invoked by Dwight Eisenhower and Lyndon Johnson against resistance to racial integration, and by George H. W. Bush to restore order in the Los Angeles riots in 1992, whose origins were similar to today’s crisis.

There is nothing un-American or “fascist” about such a longstanding backstop against chaos. Our constitution itself was written in response to a rebellion in Massachusetts that had to be suppressed solely by state authorities because the federal government was too weak to help. George Washington and Abraham Lincoln were not fascists for using military force when it was necessary to end rebellions and riots.

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Reaching for the Army, however, should be a last resort. Prudence counsels against Cotton’s proposal, for now. Where police are unable to handle riots, states can call up the National Guard. Minneapolis, the center of the storm, has done this, with some success. Bill de Blasio has refused to do so, and New York City has paid the price. Only where the Guard proves inadequate to the task should the regular military be called in.

We therefore share some of the concerns aired by James Mattis, especially his view that only in the most extraordinary circumstances should the Army be called in over the objections of state and local officials. But Mattis is wrong to paint all military assistance to law enforcement as a mission to “violate the Constitutional rights of their fellow citizens” that necessarily “erodes the moral ground that ensures a trusted bond between men and women in uniform and the society they are sworn to protect.” In fact, plenty of Americans support it. A Morning Consult poll found earlier this week that 58 percent of registered voters supported cities’ calling in the military “to supplement city police forces,” including 48 percent of Democrats and 37 percent of black voters. 71 percent supported their calling in the National Guard. A more recent poll found that support for a military presence has declined since then, but that most Americans still support calling in the Guard. Voters, even those who support the peaceful protests, want an end to riot and disorder.

We respect General Mattis’s military service and judgment and his desire to keep the military out of politics, but we think Dwight Eisenhower understood better that the Army’s mission cannot be completely detached from the domestic tranquility of the nation it serves. It may have been divisive for Eisenhower to send the 101st Airborne into Little Rock over the governor’s objections, but it was necessary.

As for the political fallout of Mattis’s broadsides against Donald Trump, the president now complains that the former secretary of defense is disloyal and incompetent and should never have been hired (and falsely says he fired him, when Mattis quit). Trump has said much the same about his own former secretary of state, attorney general, and White House chiefs of staff, among others. Even the best presidents take criticism from some disgruntled former advisers, but Trump has nobody to blame but himself for his own appointments, for his profligacy in hiring, firing, and insulting them, and for the justified reasons they have for criticizing him.

Finally, the Times is wrong about, well, adulthood. The publication of Cotton’s op-ed led the paper’s woke young staff to hit the fainting couches, shrieking that the mere appearance in their pages was a threat to their physical safety. Never mind that Cotton’s opinion is shared by broad swathes of the public and backed by two centuries of American law; the Times management was forced into an auto-da-fé of self-flagellation and confession of sin for publishing it. The campus culture of youthful tantrums, and adults too cowed to stand up to it, has now thoroughly infected major institutions such as the Times. How far it has fallen from 1863, when the Times itself defended its building from a lynch mob with three Gatling guns borrowed from the Union Army.

Just as ominously, the Times reported: “Three Times journalists, who declined to be identified by name, said they had informed their editors that sources told them they would no longer provide them with information because of the Op-Ed.” A newspaper run by its angriest staffers is bad enough; a newspaper that lets powerful sources dictate its opinions may as well fold up shop.

These are times that call for cooler heads. They are in short supply all around.

The Editors comprise the senior editorial staff of the National Review magazine and website.


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