“Revolution” at the Capitol: How Law Hindered the Response to the Events of January 6, 2021

Jill I. Goldenziel

As the horrific events of January 6, 2021, unfolded in the United States, the Department of Defense (“DoD”) faced a firestorm of criticism for not preventing the attacks or responding quickly enough to stop them. As fingers pointed and leaders resigned or defended themselves, most observers overlooked one culprit: the law. The U.S. Constitution only sparsely outlines the relationship between civilian leadership and the military, leaving Congress and the DoD to fill in the blanks. Together, Congress and the DoD have created a web of statutes, regulations, and policies that generate confusion about who bears responsibility for enforcing the law when extraordinary emergencies occur on U.S. soil. When operating domestically, federal troops must also work with federal, state, and local law enforcement agencies and State National Guards to create a coordinated emergency response.

On January 6, this complicated web of authorities and regulations contributed to the lack of a coherent response by the DoD, National Guard, and law enforcement to the Capitol siege. This Essay will briefly lay out the relevant constitutional and statutory authorities governing the deployment of federal troops on U.S. soil, including the Posse Comitatus Act, the Insurrection Act, and Defense Support for Civil Authorities. It will then explain how these authorities hindered the DoD’s response to the events of January 6, and how available authorities might have led to a different response by the DoD, and by President Trump as Commander-in-Chief. A complete discussion of how these laws and regulations should be reformed lies beyond the scope of this Essay. However, viewing these laws and regulations in light of the events of January 6 highlights gaps and loopholes that must be closed to prevent another national emergency.