Authors

Chris Mirasola, University of Houston Law Center

Domestic Military Deployments After Trump v. United States

Abstract

The current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.

In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption of immunity from criminal prosecution regarding their official acts. The majority construed “official acts” quite broadly, a move that is particularly consequential regarding the law of domestic military deployments given the plethora of statutes and the array of inherent constitutional powers Presidents have asserted authorizing such activities. Taken together, this amalgam of judicial intervention, statutory law, and executive practice yield a legal regime especially susceptible to abuse by a motivated President.

Equally as consequential is the shadow cast by the Trump majority’s understanding of executive power over actions taken by subordinate officials to implement presidential orders. Although Trump did not address subordinate criminal immunity, its dicta contained sweeping endorsements of executive power. This Article demonstrates how the executive branch would likely assert that, at least insofar as military deployments are concerned, implementing actions by subordinate military officials also enjoy a presumption of criminal immunity under Trump’s logic. It then presents two theories why such an argument would be incorrect—one rooted in the broader jurisprudence of subordinate immunity and another rooted in more particular jurisprudence concerning domestic military deployments.

Even without trickle-down immunity, Trump places unsustainable burdens on military personnel. The military justice system’s core tenants are largely incompatible with a world in which the President is immune from prosecution for issuing criminal orders while the military subordinates who receive those orders remain bound to refuse the same patently unlawful orders. In practical effect, military personnel will have every incentive to obey orders with a colorable basis in statutory or constitutional law, regardless of whether they run afoul of criminal prohibitions.

This is not to say that all was well regarding the law of domestic military deployments before Trump. Congresses of both parties have enacted an elaborate web of statutory law eroding this regime of criminal law. Add to this an array of implied presidential powers to deploy the military within the United States, and we had already inherited a deeply broken body of law.

While litigation can curb some of the dangers inherent to the law of domestic military deployments, Congress is the only branch capable of righting this ship. Whether by clawing back broad grants of power to the President or limiting domestic uses of the military through appropriations restrictions, what Congress began by enacting loopholes to this regime of criminal liability it must now reimagine to more fully protect our democratic institutions.

Repository Citation

Chris Mirasola, Domestic Military Deployments After Trump v. United States, 67 Wm. & Mary L. Rev. 189 (2025), https://scholarship.law.wm.edu/wmlr/vol67/iss1/5