Absence of the U.S. Military in the Fight to Mitigate the Covid-19 Pandemic


This is the ninth in a series of blog posts focused on  judicial systems’ response to the coronavirus pandemic -- SARS-CoV-2 is its technical name; Covid-19 is the disease it causes  --and the justice systems’ active participation in a whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19.
Two years ago, my colleagues and I were  first introduced to the concept of a whole-of- government approach to existential threats to our national security, safety, and general welfare  at the “Inaugural Whole of Government National Security Conference” on April 20, 2018 in Williamsburg, Virginia, sponsored by the Whole of Government Center of Excellence at William & Mary. (We had not yet expanded our understanding of the need for a broader whole-of-society approach to such threats.) Almost all of the presenters and the majority of 150 conference attendees were active or retired military officers or consultants and academics who worked with the military.  Looking back today, I believe that not only would almost all of the conference participants   support the military’s prominent role in a whole-of-government response  to threats to our national security but also, if asked now, they would call for the  immediate mobilization of the regular armed forces to mitigate the devastating effects of the Covid-19 pandemic. 
We are all of us every day trying to get our heads around the daily developments of the spreading epidemic. Like most of us, my colleagues and I have far more questions than answers about how to combat it.  However, as I posted here on March 19, one thing is abundantly clear: All five branches of the U.S. military -- the Army, Air Force, Navy, Marine Corps, and Coast Guard --  must be part of the response of a whole-of-society approach to combat the existential threat Covid-19 poses to our national safety, security and welfare. And they should be mobilized now. The military is today still sidelined confined to military bases around the country. 
In a pandemic, state governors have the authority to mobilize the National Guard to assist in an emergency. The National Guard has deployed nearly 5,500 Air and Army National Guard troops in at least 32 states this week to combat the coronavirus outbreak. However, the other branches of the military can only be deployed by the President. The Army, Air Force, Navy, and Marine Corps have much needed capabilities and resources that are desperately needed now in an existential threat to humanity.  The Trump administration has said it is considering federal-level authorization of domestic use of the military– which could help states with data of Covid-19 spread, medical support and planning – but has not done so at this writing.
Federal law going back centuries puts constraints on the use of the U.S. military here at home. However, those constraints are loosened in specific emergency circumstances. Can U.S. military forces be used for domestic emergencies? According to Mark F. Cancian  (Colonel, USMCR, ret.), senior adviser with the International Security Program at the Center for Strategic and International Studies in Washington, D.C., a think-tank, the answer is yes.


 U.S. military forces can be used for domestic emergencies and have seen such usage throughout U.S. history. For example, military units fought forest fires in the Western United States when local and forest service capabilities were inadequate. Troops have provided disaster relief, including after Hurricane Katrina in 2005 and Hurricane Sandy in 2012. Troops have deployed for many years to the Southwest border. Though that mission has become controversial, the president’s authorities to use troops for this purpose has been upheld in the courts.


The Posse Comitatus Act of 1878 -- in concert with the Insurrection Act of 1807 -- generally prohibits the federal government from using the U.S. armed forces to enforce domestic policies within the U.S. However, Congress enacted exceptions that allow domestic use of the military to enforce federal laws.


The Insurrection Act of 1807 allows the President to use the military “to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.”  In the wake of Hurricane Katrina in 2006, Congress amended the Insurrection Act of 1807.  The amendment identifies the specific circumstance that justify the use of the military to respond to domestic emergencies, namely natural disasters, epidemics, or other serious public health emergencies, terrorist attacks or incidents, or other conditions. Opponents of the 2006 amendment, most notably all fifty governors at the time, opposed the amendment, seeing it as a federal power grab aimed at suppressing the power of the states. 
Today, outside of the Congress and the White House on the front lines of the pandemic, there seems to be little appetite for constitutional wrangling over the legal basis and political maneuvering over the role of the military in domestic affairs. Local and state leaders are pleading for military assistance to help them fight the pandemic.  Just this weekend, we heard from the governor of New York and most vociferously from  the mayor of New York City calling on the White House to use the vast capabilities and huge resources of the military for the conversion and construction of new hospital facilities in New York City, for data and logistics, the provision of essential medical equipment and services, and the distribution of needed medical resources. According to Cancion at the Center for Strategic and International Studies, two types of military assistance would be most useful: medical units and base facilities for quarantine. 
The assurances by the White House during the daily press briefing that we’re in this unprecedented and frightening crisis all together sound hollow in the conspicuous absence of the U.S. military in the fight to mitigate this pandemic.


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