1. "Isn't the military already on the ground"?— Steve Vladeck (@steve_vladeck) May 30, 2020
A: Yes, the MN National Guard has been deployed by Gov. Walz. But the Guard wears (at least) two hats. Right now, it's wearing its "state" hat, subject to the control solely of the Governor, which is uncontroversial.
2a. As relevant here, the Insurrection Act (https://t.co/XlSIdEvBfi) and 10 U.S.C. § 12406, which governs federalization of Guard troops (https://t.co/PhRPmIjg7n).— Steve Vladeck (@steve_vladeck) May 30, 2020
When these statutes are (properly) invoked, there is no Posse Comitatus problem with domestic use of the military.
4. "But if the Governor has already called out the National Guard, doesn't that block them from being federalized?"— Steve Vladeck (@steve_vladeck) May 30, 2020
A: No. The authorities to federalize the Guard do not depend on what they were doing beforehand; there may just be less *need* to do so if they're already on site.
5a. Historically, the real checks on abuse of these authorities have been political. The Insurrection Act hasn't been invoked since 1992—largely because domestic use of the military is generally unpopular.— Steve Vladeck (@steve_vladeck) May 30, 2020
But it's not implausible to argue that these statutes *could* apply now.
5c. There's a lot more to say on the topic, but I don't want to belabor the key points.— Steve Vladeck (@steve_vladeck) May 30, 2020
If you're curious about the broader historical and constitutional foundation for these authorities, see this paper I wrote back in 2004:https://t.co/GKRF5phBKg
Thanks for reading!!
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— Steve Vladeck (@steve_vladeck) May 30, 2020