Domestic Military Operations and the Coronavirus Pandemic

Domestic Military Operations and the

Coronavirus Pandemic

Mark Nevitt*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

I. EMERGENCY LAW AND THE MILITARY’S CORONAVIRUS RESPONSE . . . . . . 110

A. Public Health Emergency: A Federal Quarantine? . . . . . . . . 110

B. National Emergencies Act (NEA) Emergency Declaration. . . 112

C. Stafford Act Emergency and Major Disaster Declarations. . . 113

II. THE MILITARY AS LAW ENFORCER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

A. The Posse Comitatus Act (1878) and Governing Regulations:

Preventing a Federal Military Role in Law Enforcement . . . . 115

B. Insurrection Act: A Critical Posse Comitatus Act Exception . 117

C. Martial Law and Military Pandemic Response: A Legitimate

Concern? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

1. Martial Law and the Writ of Habeas Corpus . . . . . . . . . 123

2. Federal Authority to Impose Martial Law . . . . . . . . . . . . 124

3. State and Localized Authority to Impose Martial Law . . . 125

D. Judicial Review of Domestic Military Use . . . . . . . . . . . . . . . 125

III. MILITARY AS RELIEF PROVIDER: SUPPORT TO CIVIL AUTHORITIES . . . . . . 127

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

INTRODUCTION

In response to the novel coronavirus crisis, we are witnessing one of the largest

domestic military operations in American history. To date, more than 45,700

Army and Air Force National Guardsmen and women operating under state

authorities have been activated. And thousands more federal military forces—to

include 5,900 Navy, Air Force and Army Reservists—are supporting the corona-

virus response via a variety of missions.

1

The military’s coronavirus crisis

response is def‌ined by diversity in service, personnel, and mission:

* Mark Nevitt is Associate Professor of Law at Syracuse University College of Law (Summer 2020).

Prior to his appointment at Syracuse, he served as the Class of 1971 Distinguished Professor of

Leadership & Law at the U.S. Naval Academy and Sharswood Fellow at the University of Pennsylvania

Law School. He served for 20 years in the Navy as both a tactical jet aviator and attorney in national

security assignments throughout the world, serving in the rank of commander. He especially thanks

Professors Bill Banks, Steve Dycus, and Gene Fidell, and the editors of the Journal of National Security

Law & Policy for their assistance with this article. All mistakes are his own. © 2020, Mark Nevitt.

1. I use the shorthand “federal military forces” to include all military forces operating under Title 10,

U.S. Code, including federalized personnel of the National Guard. This highlights the distinction

between federal forces and National Guard forces operating under State Active Duty (SAD) or Title 32,

U.S. Code. This def‌initional shorthand is consistent with governing military regulations. See U.S. DEP’T

107

�Service: Military support has come from all branches of the armed

forces—Army, Navy, Air Force, Marines, Space Force, and Coast

Guard.

2

While not a branch of the armed forces, the PHS

Commissioned Corps is also playing a critical support role as a

unique “uniformed service of public health professionals.”

3

�Personnel: Military personnel in support of the coronavirus

response include members of the active duty military, Reserves, and

National Guard. Each military unit, in turn, reports to either the state

governor via State Active Duty (SAD) or Title 32 authorities, or to

the President pursuant to Title 10 authorities.

4

Both the type of per-

sonnel and the chain of command—federal or state—determine the

scope of the military unit’s legal authorities and its capacity to

undertake certain missions.

�Mission: To date, the National Guard operating under state author-

ities has been the military’s face of the coronavirus response. The

federal military forces have largely supported this effort via their

longstanding “Defense Support to Civil Authorities” (DSCA) mis-

sion.

5

Earlier concerns that the military might overtake civilian

functions and supplant civil authorities via martial law have yet to

be realized. The Navy deployed hospital ships to both coasts, the

Army Corps of Engineers built a functioning hospital from the

ground up at the Javits Center, and the National Guard has been acti-

vated in all 50 states, 3 territories, and the District of Columbia.

6

OF DEF. DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES 16 (Mar. 18, 2018) [hereinafter CIVIL

AUTHORITIES].

2. 10 U.S.C. §101(a)(4) (2018). (The Space Force was added in 2019. See National Defense

Authorization Act for Fiscal Year 2020, Pub. L. No. 116–92, §952(c) (2019). The Coast Guard is a

“military service and branch of the armed forces of the United States at all times.” 14 U.S.C. §1 (2018).

It is ordinarily part of the Department of Homeland Security. The Public Health Service (PHS)

Commissioned Corps has played a central role in the coronavirus crisis as a quasi-military service. The

Coast Guard possesses special authority to enforce quarantines and health laws in conjunction with

direction of the Secretary of health and Human Services. 42 U.S.C. §97 (2018). For an overview of the

different military branches and their role in domestic operations, see Mark Nevitt, Unintended

Consequences: The Posse Comitatus Act in the Modern Era, 37 CARDOZO L. REV. 119 (2015).

3. 42 U.S.C. §217 (2018). The PHS Commissioned Corps is now a division of the Department of

Health and Human Services. The President has the authority “[i]n time of war, or of emergency

involving the national defense proclaimed by the President” to declare it a military service. President

Truman exercised this power in 1945. See also Masha Simonova & Nathaniel Sobel, Federal Executive

Emergency Authorities to Address COVID-19, LAWFARE (Apr. 2, 2020), https://perma.cc/UHE4-

VGHK.

4. See CIVIL AUTHORITIES, supra note 1.

5. See CIVIL AUTHORITIES, supra note 1. Technically, under DOD doctrine the DSCA mission

includes both a law enforcement and a non-law enforcement function. As discussed in Part II, there are

considerably more restrictions on using the military in a domestic law enforcement capacity. In previous

iterations, this was called a military operation other than war (MOOTW).

6. See Dep’t of Def., COVID-19 Response, https://perma.cc/K3SB-MGF4 (information current as of

May 27, 2020) [hereinafter COVID Response].

108 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:107