Renowned legal scholar Alan Dershowitz argued that the question of whether a President can legally send federal troops into American cities over local objections is a “classic example” of an issue with a highly unpredictable constitutional resolution.
Describing the governing law as “wishy-washy,” Dershowitz suggests a clear, sweeping answer is unlikely to emerge any time soon.
Dershowitz, a Professor Emeritus at Harvard Law School, breaks down the legal landscape into a few certainties and several complex ambiguities, centering the entire debate on the core principle of “who gets to decide” in a system of checks and balances.
Clear Lines of Presidential Authority
Deshowitz outlines two relatively clear areas of presidential power under Article II of the Constitution:
- Protecting Federal Interests: The President has unquestionable authority to send federal law enforcement to protect federal buildings or federal officials from danger. Furthermore, the President has the initial power to determine when such a danger exists, which is only subject to limited judicial review.
- Lack of Authority in Local Matters: Conversely, the President has no authority to interfere in purely local issues, such as street crime, where no federal interest is involved. The Tenth Amendment reserves these law enforcement matters entirely to the states and localities.
Dershowitz also noted that the President possesses greater inherent authority over Washington, D.C., even despite the District of Columbia Home Rule Act of 1973, than over other cities.
The Ambiguous Role of ‘Insurrection’
The most legally complex situation, according to Dershowitz, is when the President invokes a broader power to intervene, particularly in cases of “insurrection” or “invasion.” The primary problem lies not in the authority itself, but in the vagueness of the terms and the lack of clarity on the decision-maker:
- Defining Insurrection: The op-ed notes the lack of a precise legal definition for “insurrection,” with examples at the extremes being easy (the Civil War was one) and others clearly not (anti-Israel campus protests). This leaves a large, grey area for events like the 2024 violence in Portland, which included property destruction and blockades.
- Preventive Action: A critical unanswered question is whether a President must wait until “quixotic ‘insurrectionists'” garner overwhelming power or if preventive steps, including the deployment of federal law enforcement or troops, are legally permissible.
- The Judicial Role: Dershowitz points out the ambiguity over who—the President or the Judiciary—has the final say on whether an “insurrection” is actually occurring.
The Legal Endgame is ‘Unclear’
Ultimately, Dershowitz predicts a drawn-out legal battle, stating that the Constitution’s silence on this specific division of power is “kind of ‘wishy-washy.'” He anticipates that federal district judges will initially rule against presidential deployments in non-federal protection cases, leading to likely splits among appellate courts.
The Supreme Court, he concludes, is likely to defer a broad, categorical answer as long as possible, leaving legal guidance in this complex area to be determined on a case-by-case, “we’ll know it when we see it” basis.
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