Army: Domestic Ops Must Respect Constitutional Boundaries
The use of military forces to perform domestic functions — such as constructing barriers along the US-Mexico border — could pose fundamental legal, policy and administrative challenges.
“Military forces operating freely within civilian jurisdictions risk upsetting the constitutional balance between civil authority, the military, and the private sector,” the Army said this week in a newly updated manual.
Therefore, “Army leaders must ensure that even in a catastrophic event, Army support remains within the boundaries of constitutional principles, U.S. laws, DOD policies, and Army regulations,” the manual said. See Defense Support of Civil Authorities, Army Doctrine Publication 3-28, February 11, 2019.
As a practical matter, the Army publication said, “Commanders should begin by viewing each domestic operational environment as an assortment of civil authorities, each with primacy in its jurisdiction.”
When it comes to the possible use of military forces for construction on the US-Mexico border, there is in fact a multiplicity of government and private authorities that have primacy over different parts of the border.
A briefing slide prepared by the Congressional Research Service last week identified no fewer than six federal agencies with jurisdiction over portions of the border: Bureau of Land Management, Bureau of Reclamation, Department of Defense, Fish and Wildlife Service, Forest Service, and National Park Service. Still other portions of the border are under tribal authority or are privately held. See Background: Using Defense Funds for Construction in a National Emergency, CRS briefing slides, February 6, 2019 (at p. CRS-4).
Use of the military to construct barriers along the border would normally require coordination and cooperation with each of the affected parties. But if the President were to declare a national emergency, such requirements could potentially be set aside, placing the “constitutional balance” at risk.
“Even in a worst-case national emergency, the military will always operate under civilian control,” the new Army publication said.
At a time when universities are already facing intense pressure to re-envision their role in the S&T ecosystem, we encourage NSF to ensure that the ambitious research acceleration remains compatible with their expertise.
FAS CEO Daniel Correa recently spoke with Adam Marblestone and Sam Rodriques, former FAS fellows who developed the idea for FROs and advocated for their use in a 2020 policy memo.
In a year when management issues like human capital, IT modernization, and improper payments have received greater attention from the public, examining this PMA tells us a lot about where the Administration’s policy is going to be focused through its last three years.
Congress must enact a Digital Public Infrastructure Act, a recognition that the government’s most fundamental responsibility in the digital era is to provide a solid, trustworthy foundation upon which people, businesses, and communities can build.