The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule:
Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.
The stated purpose of the updated rule is “support in Accordance With the Posse Comitatus Act,” but in reality it undermines the Insurrection Act and PCA in significant and alarming ways. The most substantial change is the notion of “civil disturbance” as one of the few “domestic emergencies” that would allow for the deployment of military assets on American soil.
Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” Yet that’s precisely what it did. This wasn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade.