Mara Redlich Revkin
Working paper (2026)
Abstract
Over the past three decades, the armed forces of the United States have been deployed internally with increasing frequency in a wide range of situations: natural disasters and weather emergencies, pandemics and other public-health emergencies, protests, elections, border operations, and, most recently, immigration enforcement and support to ordinary policing: patrols, traffic and crowd control, and perimeter security around federal operations. Separation between the military and the police has been identified as one of the most important features of healthy democracies: the military protects the state against external threats, while the police protect the people and enforce domestic law. Sustained domestic deployment erodes that separation. Recent litigation in 2025 and 2026, including Newsom v. Trump and Trump v. Illinois, has brought attention to this trend, but the rise of internal military deployments began years before most contemporary accounts recognize. This Essay draws on an original dataset of forty-nine domestic deployment episodes since 1992, recorded under presidents of both parties and including more episodes under President Biden than under the first Trump administration. Because systematic tracking begins only in 2017, those counts are a floor rather than a measure of frequency; what the record shows without qualification is a change in the character of these deployments. The Insurrection Act, the primary statutory authority for using federal troops to suppress insurrection, rebellion, domestic violence, and obstructions of the laws, was invoked thirty times between 1794 and 1992 and not once since. Instead, presidents of both parties have relied on quieter authorities that require no proclamation and have little oversight: Title 32 status, State Active Duty, and, most recently, 10 U.S.C. § 12406. This Essay provides an overview of the different legal frameworks that govern the conduct of soldiers deployed among civilians at home, and identifies an important structural gap. International humanitarian law, the framework designed to regulate the conduct of soldiers in war, does not apply to domestic military deployments because no armed conflict exists on United States territory. A growing class of domestic “operations other than war” is therefore not regulated by any body of law. This Essay describes the pattern of these deployments over time, their locations, and their stated objectives, documents its growth, and argues for a new approach to regulation based on the function of a particular deployment — the use of force, detention, and coercion of civilians — rather than the existence of war, with proposals addressed to Congress, the executive, the courts, and the states.
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