Donald Trump caused a furious backlash when he suggested that US military forces could be deployed against the “enemy within” on election day. While such talk of using US troops against political rivals understandably shocked the public, many worried about potential for civil unrest on election day and its consequences.

If the unrest were extreme enough, the president or state governors could try to deploy troops to assist law enforcement in restoring order. But would it be legal?

to Center for Ethics and the Rule of Lawwe conducted a tableau exercise to explore this question—a matter of potentially great relevance in our home state of Pennsylvania. What we learned and what we set out to do our report it was instructive, surprising and unsettling.

In particular after January 6it is not difficult to imagine extreme situations involving civil unrest at the polls – even if it were unlikely – where the National Guard or even regular US Army troops could be called in to regain control. What we found most disturbing, however, were the uncertainties about the authorities that could legally be invoked to counter such outbreaks of violence at the polls.

Consider an example: Can the president (or governor) send in troops to restore order at polling stations?

The Posse Comitatus Act prohibits the use of the military in domestic law enforcement. In this context, an exception— Act of Insurrection — would theoretically allow a president to use troops in civil law enforcement domestically to suppress a “rebellion or insurrection.” But there is an exception to the exception.

A little known status known as Section 592, which Congress passed in 1865 and President Lincoln signed into law, speaks directly to this issue. Section 592 prohibits the use of military troops at the polls, “except when such force is necessary to repel the armed enemies of the United States.”

Would the use of force to curtail violent attacks aimed at preventing citizens from freely voting at the polls count as repelling “armed enemies of the United States?”

This question leads to the question of whether domestic, violent extremists should be considered “enemies of the United States.” This phrase has usually been reserved for foreign threats to national security. Assuming that approach remains consistent, Section 592 would prohibit a president from calling the troops to a polling place to suppress domestic violence during an election. The question then arises as to whether this provision supersedes the Insurrection Act, which might otherwise apply.

No case law addresses the relationship between these various layers of federal law. If such a case arose, a court might decline jurisdiction on political grounds, but a court accepting jurisdiction would likely find that—because it is both more specific and later in time—Section 592 trumps the applicability of the Insurrection Act.

Would it help if a governor called out the National Guard rather than the president? Probably not. Pennsylvania and some other states have provisions parallel to the federal one, constraining governors as much as the president in calling out troops to the polls.

At least as far as civil unrest at the polls is concerned, fears of heavy military responses that would intimidate voters are unrealistic because they are prohibited by law. But in a worst-case scenario involving violence at the polls, might military aid be necessary for civilian law enforcement?

While many calls to revise the Insurrection Act for the most part requires specific restraint language too broadhere is an example where the Insurrection Act may not actually do enough to protect the country from the possible effect of domestic extremism, given the critical importance of free and fair elections to the survival of American democracy. Whether the Act of Insurrection makes us more or less safe depends, of course, on who uses it and how it is used.

A final wrinkle further deepened the complexity of our exercise. Let’s say that deploying troops to polling places would probably be illegal, but both the governor and the president wanted to do it anyway. Could they conspire to have the president federalize the National Guard and issue orders, knowing that his new immunity would be a shield against criminal charges even for issuing an obviously illegal order? This is just one of the many complexities that could result from the Supreme Court’s immunity decision in Trump v. United States. It shows how the reverberations of this decision could make the country less safe in countless ways.

Hopefully, nothing we imagined in our mass exercises will happen, but we must be prepared. The clearest lesson was that we are ill-prepared to deal with such a scenario—not because federal, state, and local authorities have not done everything possible to prepare for any eventuality, but because the legal authorities with which they can act remain contested. and unclear.

With the election a week away, it’s too late to address legal gray areas, but addressing as many remaining legal and operational vulnerabilities as possible — with whatever planning and forward thinking is available — could make the difference between a chaotic transition of power. and a peaceful one.

Claire Finkelstein is Algernon Biddle Professor of Law and Professor of Philosophy, as well as Faculty Director of the Center for Ethics and the Rule of Law, University of Pennsylvania.

Brenner Fissell is a professor of law at Villanova University and was a member of the Class of 1964 at the Stockdale Ethics Center, US Naval Academy.

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