On Friday night, President Donald Trump, in his capacity as the commander in chief, issued an executive order recalling a number of military reservists to active duty to help with the COVID-19 pandemic. This is not unprecedented. During previous domestic crises, the federal government and state governments have ordered the U.S. military, including the National Guard, to assist in emergency operations on American soil. The Bush and the Obama administrations did so during hurricanes Katrina and Sandy. And the U.S. military has also come to help during crises on foreign soil, providing relief in the aftermath of earthquakes in Haiti and Pakistan, the Ebola outbreak in Liberia, and the Fukushima nuclear disaster in Japan.
The use of U.S. military personnel for emergency operations related to the coronavirus raises three important questions: First, what is the legal basis for ordering the military into action on American soil? Second, is the military equipped and trained for this? And third, is this an appropriate job for the military—and why are our civilian institutions incapable of doing their jobs?
First things first: Is it legal to use military personnel in this way? Readers will likely know that governors are authorized to call upon National Guard units based in their states, but that longstanding federal law—primarily the Posse Comitatus Act—prohibits the use of the Army and Air Force from being ordered into certain kinds of action on U.S. soil. (Similar restrictions are in place, via departmental regulation, for the Navy and Marine Corps.) However, those restrictions chiefly forbid the use of the military for actions related to domestic law enforcement. Other statutes—including the Stafford Act—explicitly permit the use of the military in responding to emergencies. There are many very complicated legal considerations involved in situations like these; you can find helpful primers on some of the issues here, here, and here. (And if you know anyone overly concerned about the Posse Comitatus Act, you might send them this excellent Twitter thread from Lindsay Cohn.)
Next, is the U.S. military appropriately equipped and trained for situations like this? As Kathleen Hicks and Joseph Federici lay out, the U.S. military has considerable resources to come to the aid of civilians, including medical supplies, medical personnel, and possibly therapeutics. The U.S. military is also second to none in its logistical resources, especially during emergency situations, when it is critically important to be able to quickly get supplies and personnel where they need to be. For instance, military personnel could help set up drive-through COVID-19 testing facilities and mobile and temporary hospitals, in case there is a shortage, as they are trained to do in war zones.
The U.S. military (including the National Guard) also has a lot of healthcare professionals, including physicians and nurses. But there is a risk in the federal government calling upon them in this crisis. Some of the reservists and ready reservists who will be called to active duty under the president’s executive order will be healthcare professionals who already practice medicine as civilians. They are almost certainly already dealing with the outbreak wherever they currently are; in most cases, they are where they are needed most, which is their own communities. As Hicks and Federici suggest, to the extent that the government can call upon them, it should be on a voluntary basis. Only they, as individuals, can judge whether they are needed where they are right now.
Two other reasons the U.S. military is well prepared, as a matter of equipment and training, for this sort of crisis: its solid funding base and its institutional culture that demands competence. Despite our polarized politics, military spending is the only part of the discretionary budget that passes Congress with overwhelming consensus year after year—this year’s National Defense Authorization Act passed the House 377-48 and the Senate 86-8. By many measures, the military is the best-funded and -equipped part of the government. And the Department of Defense (DOD) constantly engages in serious self-evaluation, revisiting and learning from past missions. As Hicks and Federici point out, one of the reasons that the DOD is well-equipped to step up today is its evaluation of its shortcomings during previous national emergencies.
A recent New York Times op-ed suggested the establishment of a military command for disaster response. This might seem on the surface to be a good idea, since the military is competent, well-equipped, well-trained, and widely trusted. It sometimes seems to be the only institution in America that still works. But it is a terrible idea, since it asks the DOD to do what should be the job of civilians.
Mind you, there is a civilian institution whose sole purpose is dealing with civilian national emergencies: the Federal Emergency Management Agency (FEMA). Yet, as we have repeatedly seen, FEMA is not a reliable institution. Crisis after crisis, administration after administration, FEMA’s troubles dealing with major emergencies has been neglected once those crises were over.
FEMA is not alone in that regard; in the absence of public scrutiny, other federal agencies are routinely underfunded or mismanaged. When this problem leads officials to call upon the military, it distracts the military from its core responsibilities and deprives it of resources for future missions.
Of course, this pandemic is an extraordinary, once-in-a-century crisis, and surely most of the military personnel who will be called into action will be eager to find ways to serve. But it is not good for our democratic republic for its civilian institutions to be incapable of handling domestic crises without military support, or for the people to constantly distrust nearly all institutions, public and private, except for the military. (Gallup reports that the military is almost the only institution that Americans consistently and overwhelmingly trust.)
If we don’t take the rest of our government and society as seriously we do the military, and if our civilian public and private institutions don’t take themselves as seriously as the military does, we increase the risk of failures in the face of future crises.