Proposed Rules for the Use of Force at or Near Election Sites

As the midterm election draws near, public confusion and anxiety about what it might encounter from the federal government that day—particularly from the military—have heightened, giving some democracy advocates cause for concern. The primary source for this alarm: President Trump.

As this article will suggest, there is likely only one workable way to abate some of that alarm: transparent rules that closely regulate the use of force when the commander in chief or a state’s governor orders the military into action. That may seem an odd juxtaposition, for the operational chain of command ultimately reports to the president (and a state’s National Guard reports to the governor).

Yet commanders who intend to stay within legal bounds on the use of force should feel confident that the rules they impose on tactical operations will, as described below, ensure compliance with both the Constitution and other laws. An order that departs from those requirements would likely be unlawful.

Background

President Trump continues to claim, without evidence, that thousands or even millions of illegal immigrants vote in federal elections and continues to impugn the integrity of the “patchwork” of state-by-state voting processes. He has claimed that illegal immigrants “were brought to our country to vote, and they vote illegally.” More concerningly, Trump has continued to associate unsupported claims of electoral cheating with national security dangers, suggesting extraordinarily anti-democratic remedies: “The Republicans should say, we should take over the voting in at least 15 places. The Republicans ought to nationalize the voting.” Leaders of other departments of the executive branch have followed suit: Homeland Security Secretary Markwayne Mullin reiterated Trump’s talking point, stating that “election security is national security.”

But Trump does not blame only undocumented voters for the supposed fraud. In September 2025, he blamed “radical left democrats” for political violence generally and designated “antifa” activities as a “domestic terrorist organization.” Such misleading claims, amplified as an “emergency,” could provide ample pretext for invoking the Insurrection Act on or before Election Day.

Trump has not foreclosed the possibility of declaring a national emergency or invoking the Insurrection Act to address such an alleged emergency. He needs only to assert one of the act’s preconditions (for example, “unlawful obstructions” to federal law) as “fact” and that only the president can solve it with the armed forces. Moreover, Trump has directed the creation, training, and equipping of “quick reaction forces” within the National Guard of each state, territory, and Washington, D.C., to respond to civil disturbances, which he could activate as president under his Title 10 authority.

This article does not address the imprudence of declaring a national emergency or invoking the dangerously deferential Insurrection Act in order to deploy the military to election sites. Moreover, Department of Defense (DOD) regulations prohibit active-duty and National Guard forces under Title 32 status from “conduct[ing] operations at polling places and must strictly refrain from activities similar to those prohibited by” 18 U.S.C. §§ 592-594. As Loren Voss and Natalie K. Orpett explain thoroughly, a plain textual reading, reinforced by three canons of statutory interpretation and supported by the legislative history and purpose of the various criminal prohibitions against using the military at or near the polls, strongly indicates that they cannot be overridden by simply invoking the more general Insurrection Act.

Indeed, Gen. Dan Caine, the chairman of the Joint Chiefs of Staff, testified that there are no plans to deploy troops to the polls. Though the military’s highest-ranking officer and the principal military adviser to the president and secretary of defense, Caine is not, by law, in the operational military chain of command. Somewhat more reassuringly, Gen. Gregory Guillot, the commander of U.S. Northern Command—who would have operational control over any domestically deployed troops—testified that he would reject an order from the president or secretary of defense to deploy to election sites without an external threat.

However, cause for alarm remains. First, the president can summarily relieve both Caine and Guillot at his discretion in favor of a more devoted replacement.

Second, if the president unilaterally determines that “troops or armed men” are necessary to “repel armed enemies of the United States” from polling sites, 18 U.S.C. § 592 provides that limited exceptional authority, as Voss and Orpett recognize. Such an order would nullify Guillot’s otherwise legitimate grounds for disobeying an order to send troops to the polls. If the order is lawful, Guillot must follow it under the Uniform Code of Military Justice or risk criminal charges.

Third, no judicial precedent exists to explain how criminally militarized elections or immigration crimes and the president’s Insurrection Act authority intersect. There is, instead, substantial precedent (including recently in the U.S. Courts of Appeals for the Seventh and Ninth Circuits) for granting significant deference to the factual determinations of presidents making national security decisions—going as far back as 1828, as the Department of Justice has argued. That some federal district courts have pushed back on these arguments, and that the Supreme Court has recently rejected the Trump administration’s interpretation of a domestic deployment statute, does not mean the president will not forge ahead with a novel assertion of executive power anyway. As recently as Sept. 28, Trump commented during his interview with Time magazine, “I don't rule anything out or in. We'll see ... I could use [the Insurrection Act]. A lot of people think I should use it sometimes.”

This article presupposes that Trump will order elements of the U.S. military to American cities before or on Election Day under some initially colorable claim of legal authority, be it “inherent” powers under Article II of the U.S. Constitution or a federal statute granting him emergency authorities.

But this article also offers a way thoughtful military planning can mitigate the pernicious—if not outright dangerous—tactical consequences of such a deployment through clear Rules for the Use of Force (RuF), the domestic equivalent of rules of engagement in traditional armed conflicts. It cannot, of course, prevent the foreseeable undermining of civil-military relations that such a domestic deployment would trigger.

But these RuF will provide some comfort to those who fear a redux of the violence in Minneapolis attributable to poorly trained and overly aggressive immigration enforcement, provided three conditions are met. First, the RuF must be written and implemented conscientiously by the chain of command. Second, the troops on the ground must obediently follow the RuF. Third, the RuF must be publicly released, as they are almost always unclassified anyway, to give civilians insight into the rules that restrain the military and confidence that its members will follow them. The rest of this article justifies why a tailored RuF for this scenario is necessary, and recommends what such rules should look like.

What Are RuF?

The RuF constitute a lawful order issued by a competent military command authority to an entire domestic noncombat operation. They can also apply to discrete military units operating across various domestic missions. These rules:

provide operational guidance and establish fundamental policies and procedures governing the actions taken by DOD forces performing civil support missions (e.g., military assistance to civil authorities and military support for civilian law enforcement agencies) ... within US territory.

Congress has not passed a law dictating that the Department of Defense promulgate such rules. This Defense Department directive (para. 2.8) states that the chairman of the Joint Chiefs of Staff (CJCS) “helps ensure that plans, policies, directives, and rules of engagement issued by the Combatant Commanders are consistent with this issuance and the law of war.”

Specifically, with respect to arming service members for law enforcement military operations, a Pentagon directive orders the CJCS to “[r]ecommend to the Secretary [of Defense] Standing Rules for the Use of Force [SRUF] consistent with this issuance.” Since 1994, those recommendations have taken the form of an “CJCS Instruction” titled Standing Rules of Engagement/Standing Rules for the Use of Force. Derivative rules for the use of force exist even for Defense Department operations supporting civilian counterdrug law enforcement domestically, which—as explained below—may prove a useful model for a deployment in the election context.

The RuF are similar (but not identical) to a police officer’s rules for the use of force applicable to civilian police officers under the Fourth Amendment’s reasonableness standard for using force (including “seizures”) and searches, and other basic constitutional protections against government action under the Fifth Amendment, such as the privilege against self-incrimination. 

The military’s RuF will specify the circumstances when force may be used against a civilian. For example, the RuF will outline actions considered a “hostile act” or what demonstrates “hostile intent,” triggering the right to use force in self-defense. The RuF may also specify what weapons troops can carry, how they may be carried (concealed or open; rounds in the chamber or otherwise), how such weapons may be used, limitations on specified weapons use, the conditions under which a civilian may be temporarily detained and questioned, and the command-and-control relationship between civilian law enforcement agencies and the military, among other details. 

The RuF provide a series of procedures for using force, starting with the reminder to deescalate “when time and circumstances permit,” and emphasizing that “normally, force is to be used as a last resort” and only to the extent “minimally necessary” and must be “reasonable” in “intensity, duration, and magnitude.” In this vein, the RuF will usually list “graduated response” steps to escalate force when necessary.

The RuF then will set conditions under which deadly force is authorized by default: “Deadly force is to be used only when all lesser means have failed or cannot reasonably be employed,” and only in limited scenarios. It is important to understand that RuF, like rules of engagement, restrict what might otherwise be lawful, for policy purposes and to limit the military operation’s scope. As an order from a superior commander, RuF have the force of the military’s criminal law behind them. To violate the RuF is to commit, at a minimum, the crime of disobeying a lawful order.

The military has two clear options for drafting and executing RuF if it is ordered to deploy at or near polling sites with an election security mission.

Option 1: Adopt the Standing Rules for the Use of Force (SRUF)

Implementing the SRUF is by far the simplest for the Pentagon to transmit down the chain of command. But they are also likely the least helpful to commanders and personnel operating in or around election sites, or to the civilians directly in contact with service members, because they do not provide specific contextual nuances of what can and cannot be done, driven by the type, location, and scope of the mission.

The SRUF do not keep up with current events or automatically adjust to new tactical conditions or missions. They were last promulgated in June 2005 (though they were validated as “current” in August 2022). Furthermore, they provide a surprisingly long list of circumstances in which deadly force can be used (provided it is a last resort): in self-defense, in defense of others, to prevent theft or sabotage of “assets vital to national security” and of “inherently dangerous property,” and to prevent sabotage of “national critical infrastructure,” among several others. The SRUF’s definitions of these terms, unfamiliar to civilians and law enforcement, are worrisomely broad. For example, “assets vital to national security” are those:

which the President determines would seriously jeopardize the fulfillment of a national defense mission and would create an imminent threat of death or serious bodily harm. Examples may include, but are not limited to, nuclear weapons; nuclear command and control facilities; and designated restricted areas containing strategic operational assets, sensitive codes or special access programs.

Note that designation authority is the president; note that “seriously jeopardize the fulfillment of” is not defined; and note that the list of examples is nonexhaustive.

The SRUF definition of “national security infrastructure” is similarly worrisome:

For the purposes of DOD operations, defined as President-designated public utilities, or similar critical infrastructure, vital to public health or safety, the damage to which the President determines would create an imminent threat of death or serious bodily harm.

It is difficult to see how election equipment or processes—even materials that noncitizens allegedly used, foreign malign actors tampered with, or domestic agent provocateurs meddled with—meet either of these definitions. But it is no longer safe to presume that the Department of Justice would be reluctant to unreasonably exaggerate what constitutes national security threats to public safety or bodily harm, or to misread legislative history.

The Justice Department’s Office of Legal Counsel (OLC) has issued expansive interpretations of the Insurrection Act. In 1968, the office opined that the act provides an exception to the bar on “armed men” at the polls to quell civil disturbances, despite contrary textual and historical evidence. Moreover, any such presumption is unsupported by more recent OLC opinions, like the memorandum (still unpublished pending Freedom of Information Act litigation) placing the lethal boat strikes in the Caribbean under the false legal cover of a noninternational armed conflict. The result of that defective legal analysis is a campaign that has directed the military to commit more than 70 murders, violating U.S. criminal law and international human rights law.

Option 2: Tailor the SRUF to the Specific Operation and Mission

The SRUF permit “combatant commanders” (for example, Guillot of the U.S. Northern Command) to augment these SRUF as necessary by submitting a request for mission-specific RUF to the CJCS for defense secretary approval. It further adds that tactical unit commanders (some far down the chain of command and most likely having direct contact with civilians) “may further restrict mission-specific RUF approved by the SecDef.” That is, they can make the rules more restrictive, not more permissive, as to the use of force when circumstances warrant.

The following offers suggestions for what such mission-tailored RuF should include, using the RuF for a military mission to support civilian counterdrug law enforcement operations as a starting model.

Modeling the RuF Based on Counterdrug Operations

Going beyond the SRUF’s generic template, the RuF for counterdrug law enforcement operations (issued in 2000) provided commanders with far more nuanced control measures to regulate their troops’ use of nonlethal and deadly force when executing policing missions to ensure they do not violate U.S. law, such as the Posse Comitatus Act (PCA) prohibition on using the military to “execute the law” absent an express statutory or constitutional authority. To be clear, the RuF are not such an authority.

For example, these RuF specify both substantive and geographic limitations. They apply to only one mission—supporting civilian law enforcement agencies conducting counterdrug operations in only one location (U.S. territory).

These RuF specify that they are unclassified and “approved for public release” with “unlimited” distribution.

These RuF include a section titled “special considerations” to provide “legal and policy guidance” for this unique and limited type of military operation. For instance, it specifies that—while countering drug production, trafficking, and use is a “high priority national security mission”—it is not a “war mission of the Department of Defense” but rather, and only, “support to law enforcement.” Further, the RuF mandate that military personnel “not act as law enforcement personnel” and “not execute civilian law” during these operations, directing them to “remain at all times distinguishable and separate from” law enforcement activities and to “not directly participate in” those law enforcement activities, such as search, seizure, arrest, or “other similar activities.”

These RuF clarify that law enforcement personnel have the “primary responsibility for protecting themselves” and that a soldier’s right to use force in self-defense “does not authorize” them to “provide security for law enforcement personnel or others.”

These RuF authorize only “temporary detention” and subduing persons, and only under very constrained preconditions: (a) to prevent them from attempting to steal or sabotage property designated “vital to national security” or that which is “inherently dangerous” or (b) when a person poses an “imminent danger of death or serious physical injury” to anyone in the “immediate vicinity of the DOD personnel.”

However, these operation-specific RuF have several critical limitations on how force may be used.

First, service members “may not use force to facilitate the accomplishment of the underlying” law enforcement counterdrug operation.

Second, the right to use force in self-defense cannot justify the “substitution” of Department of Defense personnel for law enforcement personnel or to “augment the offensive use of force” by those agents.

Third, these RuF prohibit military personnel from accompanying federal, state, or local police on “actual counterdrug field operations” and from “participating in any activity in which counterdrug-related hostilities are imminent.”

Fourth, these RuF order military personnel to “make every effort to avoid confrontation, armed or otherwise, with nonmission personnel and civilians.”

Fifth, these RuF direct commanders to ensure their subordinates have received “appropriate, timely training on the use of force” before providing support to these counterdrug support operations.

Sixth, these RuF provide a checklist of actions to take if military personnel believe confrontation with civilians is likely, including verbal warnings to cease threatening actions, barring warning shots and shots intended to disable moving vehicles, and to “withdraw to a predesignated position” to avoid “confrontation.”

Seventh, the RuF establish a clear priority for nonlethal force, even if necessary to protect individuals, the unit, or property.

Eighth, these RuF enumerate an apparently exhaustive list of situations in which the “necessity” to use deadly force arises, including to defend property designated by the National Command Authority as “vital to national security,” and only when necessary. Notably, this provision provides an example hypothetical meant to demonstrate a rationale for defending an armed, moving military helicopter and explain why defending an unarmed, stationary helicopter might not be.

None of these specific limits is mentioned in the SRUF. Such a contextually conscious set of rules seems particularly apt as a guide for RuF in situations in which the military would be ordered to support or directly enforce either immigration or election law (or both) or to provide additional layers of protection for other civilian agents or government property at or near polling sites—all activities that implicate significant legal barriers to military activities, only one of which is the PCA.

Recommended Election-Related RuF

Election RuF should incorporate each of the counterdrug RuF’s specific control measures, including the use of nonlethal and lethal force, the detention of civilians, the rules against participating in law enforcement operations, and the command to ensure all troops are provided “appropriate, timely training.”

However, election RuF should also be modified in the following ways:

1. Specify that Department of Defense personnel will wear, in lieu of the standard camouflaged uniforms, civilian clothing (for example, khaki pants and a polo shirt) to distinguish themselves from federal, state, and local law enforcement and to reduce public angst or intimidation foreseeably associated with seeing troops in uniform. (Of course, this rule would do little to prevent public backlash if those troops nevertheless engage in unlawful election interference, including preventing legal voting or seizing ballot boxes.)
   

2. Specify that military personnel will be unarmed during the entirety of the operation.
   

3. If they must be armed, it is strictly for self-defense and unit defense. Further restrictions can be imposed on who will be armed, where munitions and firearms will be stored, and the conditions under which firearms may be accessed.
   

4. If personnel will be armed, the RuF should specify at least the same preference for avoiding confrontation beyond incremental deescalation measures such as those the SRUF provide. 

5. If military personnel are to be armed, the RuF should also specify at least the same limitations on using nondeadly and deadly force against civilians described in the counterdrug RuF and which regulate civilian law enforcement officers, with an emphasis on using force as a last resort and only to the extent reasonably necessary under the circumstances known at the time.
   

6. Specify that any force used must be in accordance with the performance of their assigned and limited mission. This should be nothing more than using reasonable force as a last resort for individual or unit defense, and as a last resort to quell violence in the troops’ immediate vicinity that law enforcement personnel are not capable of addressing.
   

7. If personnel are armed, the RuF should specify that no election-related property or property related to enforcement of federal immigration law has been designated an “asset vital to national security.” 

8. Because an elections deployment would implicate the constitutional rights to vote, assemble, and protest, the RuF should expressly summarize how those rights are protected against infringement by all government agents.
   

At a minimum, the RuF ought to include a directive that government agents must respect the public’s constitutional rights to peacefully assemble, speak, protest, record law enforcement officers performing their duties in public spaces, and vote. It should caution service members to respect the Fourth Amendment right from unreasonable searches and seizures.

The RuF should also explain that the military has no role in seizing, securing, transporting, or otherwise interfering with voting machines and ballot boxes, or providing voter information of any kind.

They should explain that a person may be subject to a brief, temporary, and involuntary detention by police, based on “reasonable suspicion” of criminal activity (such as being an illegal immigrant attempting to vote). A person may be “frisked” if the officer has reasonable suspicion that the person is carrying a weapon and is dangerous. Reasonable suspicion must be based on more than a “gut feeling” but requires less evidence than “probable cause.” Based on a 2025 U.S. Supreme Court decision, the RuF should note that federal immigration law permits law enforcement agents to temporarily stop a person based only on “reasonable suspicion” of illegal presence in the United States. The RuF should also note that law enforcement officers may arrest an individual based on probable cause that any criminal offense has been committed, even if the offense does not authorize incarceration as a penalty. They should explain that no warrant is required if the individual is in public and there is probable cause that a felony happened, or if the officer observes the individual commit a misdemeanor. 

Though these RuF should explicitly bar the military from law enforcement activities, adding specific details about constitutional rights serves at least two salutary purposes. First, it educates service members about the control measures already imposed on police even when the commander in chief declares a national security threat. Second, by releasing these unclassified RuF to the public, the military helps ensure that civilians at or near polling sites—whether to exercise their franchise that it is “preservative of all other rights” or to protest—are well informed of what constraints legally bind agents of the government, whether they wear camouflage or police uniforms.

9. These mission-tailored RuF should require that command-directed “appropriate, timely training” on the RuF include realistic scenario-based training in coordination with applicable civilian law enforcement personnel prior to the execution of any military support mission. Neither is currently demanded by the SRUF or the counterdrug support operation RuF, but neither set of rules would prohibit it, and common sense suggests its value. When commanders are pressed for time, they often default to meeting the minimum level of preparatory effort demanded; in the case of election-related RuF, those commanders need a reminder that a PowerPoint presentation by a judge advocate (JAG) officer to a room full of soldiers after arriving on site is neither “appropriate” nor “timely.”

It should be noted that such RuF would apply only to federal troops—active-duty units and any federalized National Guard troops. Personnel deployed to election sites under Title 32 or under a governor’s traditional authority would not be.

Nevertheless, the recommendations above could apply to state-led National Guards too. Commanders might craft RuF that are even more restrictive if their state’s constitution or statutes ensure even greater civil liberty protections or impose additional use-of-force control measures. National Guard forces operating under Title 32 or state/territorial active-duty status will typically operate pursuant to RuF just as their active component (Title 10) counterparts, but each state may have its own rules. Accordingly, governors and adjutants general commanding National Guard forces should follow the guidance contained above.

*          *          *

The chance of the president deploying the U.S. military to polling sites in November is not zero. While the lawfulness of that deployment is very questionable and entirely fact dependent, commanders can prepare now by deliberating about control measures for troops in such a potentially confrontational deployment. The counterdrug law enforcement operation RuF provides a useful starting model for drafting such control measures. Commanders must, however, augment this RuF with additional caveats driven by the exceptional circumstance of deploying troops at or near the polls. When the president orders the military to use an iron fist, the military can still wear a velvet glove over it.

The resulting RuF can mitigate the foreseeable but preventable escalation of violence accompanying military operations. They will prevent troops from committing criminal violations (for example, the PCA and 18 U.S.C. § 592; state criminal laws) for which they—not the president—risk prosecution. Finally, an election RuF may increase the public’s confidence that the military follows transparent rules consistent with the rule of law rather than a commander in chief’s unlawful dictates.