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As the United States marks the 250th anniversary of the Declaration of Independence, marking the official birth of the new nation, it is worth remembering some of the reasons the document offers as just cause for making war on the British monarchy.
“No taxation without representation” is the slogan that is best known as the core complaint of the colonists, a reference to the colonists’ objections to the 1765 Stamp Act and a series of taxes levied by the British crown thereafter over which Americans had no means of objecting in parliament. But such taxes were not the only provocation to war.
Another significant objection to the crown’s control over the colonies was its insertion of military troops into civilian life. The Declaration details the fact that King George had sent British officers to harass the people; that he had kept standing armies among the people during peacetime without the consent of colonial legislatures; that he had attempted to place the military in control of civilian governments; that he had forced civilians to house British officers (“quartering”) in their own homes; that he had forced Americans taken prisoner to take up arms against their own countrymen; and finally that he had provoked domestic insurrections among the people and even incited Native Americans against the colonists.
This list of complaints is striking in light of events of the present day. Substitute ICE and Customs and Border Protection (CBP) for the British officers sent to harass the people; substitute federalization and deployment of the national guard and the marines to US cities in 2025 for keeping standing armies; substitute using federal troops over the objections of Democratic governors; and substitute portraying protests in Portland in 2020 and Minnesota in 2026 as violent civil unrest warranting federal force, and the pictures are dismayingly similar.
Given the oath members of the US military swear to defend the constitution upon enlistment, and their general adherence to that oath, the campaign critics say presses federal troops into service against political opposition and weakens checks and balances has not been entirely smooth sailing for Donald Trump.
It has required the removal of top Pentagon lawyers and internal pressure against those who voice objections to the Department of Defense’s policies. Slowly but surely, this pressure campaign has been working to undermine integrity in the services and encourage or compel compliance with legally questionable policies, such as the strikes on drug boats in the Caribbean and eastern Pacific.
Ultimately, current expansive interpretations of commander-in-chief authority increase the likelihood of military compliance with presidential directives, even in domestic deployments where such compliance might be least expected.
Using the military to undermine traditional civilian modes of governance, the signatories to the Declaration remind us, is one of the preferred tools of dictators. If the military can be brought along, the president’s ability to eliminate other checks and balances is greatly facilitated. This is also the path to undermining the rule of law.
The signatories to the Declaration also point to King George’s attack on another branch of government, namely the judiciary. Among other things, courts have the power to issue rulings that rein in the military, and thus controlling the judges is a critical part of the effort to concentrate the power of the executive.
Surprisingly, the US supreme court did not come through for Trump in its December decision regarding federalization of the Illinois national guard. Much to Trump’s dismay, the court found that the administration violated the law in deploying the state’s guard troops in Chicago to control civil unrest, exceeding its authority under 10 USC §12406, the statute used to deploy federal troops.
Trump v Illinois was likely only a temporary setback for the administration, given the other options at its disposal for domestic deployments. In particular, Trump could invoke the Insurrection Act, an amalgam of statutes of longstanding concern to civil rights groups who have warned it may be an unassailable assertion of presidential might.
Others, the present author included, take a more tempered view of its authority, but it is generally agreed to be more supportive of a president’s ability to federalize and deploy troops over the objections of state governors than any other source of law.
Why Trump stopped short of using the Insurrection Act after the Illinois ruling is anybody’s guess. One danger is that he could be saving it for a break-glass moment when there is an urgent need to influence politics, such as midterms. His threats to make use of it are surely to be taken seriously.
Preparing for military involvement in the midterms
The idea that a president might use federal troops to influence domestic elections may seem far-fetched, but it is not. When Trump lost the 2020 election, he entertained a plan, along with his former national security adviser Michael Flynn and the “My Pillow Guy” Mike Lindell, to use the army to seize voting machines to rerun the election.
While Trump was ultimately talked out of that plan by several key advisers, he has recently expressed regret he did not proceed. And this time around, there may be no grownups in the room to restrain him. His incentives to tamper with the midterms are surely high: Trump will surely need to protect himself against the risk that a Democratic-led House might impeach him or, what is probably worse from his perspective, conduct investigations that could subject the president to prosecution for personal-capacity crimes by the next administration.
Already, this administration has been attempting to seize voter roll data and has filed numerous lawsuits to enforce its demands. However, several district court rulings have found the justice department’s asserted right to the data unlawful. Trump has also begun to position himself to contest election results in case they do not go his way. Last month, for example, he declared there had been fraud in the elections in California and the administration has said that the state’s voting mechanisms are under investigation.
What can protect the American people against an attempt to use the military to interfere with the coming elections? One’s first thought might be that any such interference would likely be a crime, and that members of the administration could be prosecuted under any number of provisions of state or federal law.
But then one might remember the 2024 decision of the US supreme court in Trump v United States, in which chief justice John Roberts, along with five of his fellow justices, declared presidents immune to prosecution for official capacity acts. The decision implies that Trump may be insulated from criminal prosecution for acts related to domestic deployments, even if those acts are unlawful.
What about troops? Would they be willing to follow orders of such patent and serious illegality? Hopes likely would be dashed here again, since the orders could be accompanied by a made-to-order Office of Legal Counsel opinion asserting legality. It is challenging for ordinary enlisted troops to second-guess such an assessment. And military lawyers are not currently emboldened to speak up against illegal orders, on pain of removal or even prosecution.
If Trump deploys the national guard or other federal military in an attempt to control voting during the midterms, his actions are bound to meet with greater opposition than anything undertaken thus far, given the greater limitations that operate in domestic military deployments than in use of the US military abroad.
In addition, he would have to confront clear statutory authority and legal norms that forbid the use of troops at polls. The question would be the degree of resistance, particularly among military leadership and members of Congress.
Resistance can be buoyed by honest legal analysis that cuts through the disinformation of the Trump administration. It is important to remind military officers and even senior civilian leadership that the immunity enjoyed by the president would likely not trickle down to others in the chain of command.
A secretary of defense who conveys an illegal presidential order is almost certainly not immune, and this applies even more emphatically to the Northcom commander, under whose command federalized national guard troops and other troops domestically deployed would sit.
The absence of immunity, however, is not a failsafe, since the president has the ability to dangle pardons before any member of the military chain of command whose allegiance he wishes to secure.
Moreover, as commander-in-chief, the president can exercise great influence over who is court-martialed and who is not, and though weighing in to influence decisions relating to military prosecutions would likely constitute unlawful command influence, the reality is that some judge advocate general (Jag) would be deterred from moving forward with a prosecution that he or she knows the defense secretary would rather brush under the rug.
Even if Trump is not successful in using his commander-in-chief authority to control the upcoming elections, there could be significant collateral damage from the attempt. At grave risk is a key idea mentioned in the Declaration: the separation of civilian and military authorities.
The fight on the part of the governors to maintain their control over their national guard is, on the one hand, a battle for the independent checks and balances of our federal system, in which states constitute an additional counterweight to the expanding power of the executive branch. But it is also a battle for the fidelity of the military to the rule of law and to the longstanding understanding that defending the constitution is the ultimate apolitical value in a democratic society. Undermine that and a would-be dictator is home free.
We the people can protect our democracy
In one sense, there is nothing new here. Kings and dictators naturally search for ways to consolidate their power and shield themselves from accountability. Subtler methods of achieving these goals involve seeking favorable rulings from courts that strengthen their authority, or establishing power through the acquiescence of nobles, oligarchs or lawmakers with whom they surround themselves.
Presidents often behave like kings and use tools of monarchical control. Both Democratic and Republican presidents have surrounded themselves with advisers and protectors who willingly assist them to amass power and hang on to it once they have it. This goes for the members of their cabinet, judicial appointments, and anyone in a position potentially to serve as a check on their authority.
But what is particularly concerning is that Trump has managed to convince a large segment of the American public that his agenda is also theirs, despite the transparently self-serving nature of his decision-making. In so doing, the Americans have allowed a president to defy both the letter and the larger spirit of the Declaration of Independence, and to abandon that founding document’s once revolutionary assertion of popular sovereignty in favor of a return to monarchical rule.
Will threats to the bedrock of US democracy – the right to vote freely, privately and without interference from a domestic or foreign distorting power – enable the country to find its inner Declaration and reject this latter-day monarchy? Are Americans finally willing to reclaim their own sovereignty and reject the bending of government to profit Donald Trump and his family? Will they stand up and reject the corruption of government institutions to shield presidents from the consequences of their actions?
The willingness of the people to insist on the protection of their most critical political right – the right to political representation – will be a test of the country’s commitment to the ideal that spawned the Declaration of Independence: the idea that no person is above the law.
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