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The Insurrection Act: What It Says And How It Has Been Used

What is legal is not necessarily a good idea.

The nation got a shock on Monday afternoon when President Trump essentially threatened to invade riot-stricken areas with federal troops if governors and mayors did not handle the unrest to his approval. The basis for this threat is the Insurrection Act, a much-amended law first passed in 1807 that allowed the president to “employ… such part of the land or naval force of the United States” for the purpose of dealing with cases “of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory….”

The Insurrection Act provides an exception to the general ban upon using the federal military for domestic law enforcement. The Posse Comitatus Act holds that leaders who use “any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws” can be fined or imprisoned, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” (Discussion of posse comitatus always reminds me of the James Garner movie, “Tank” (1984), bastardized the term to “p-ssy communist” but that’s neither here nor there.)

As has been noted, the Insurrection Act was most recently used in 1992 during the Rodney King riots in Los Angeles. However, a major difference between the 1992 deployment and Trump’s threatened use of the military is that California’s Republican governor, Pete Wilson, requested federal help. In the current situation, federal military help has not yet been requested by any state governor.

The Insurrection Act was also used during the Civil Rights era of the 1950s and 1960s. In one of the most famous examples, President Eisenhower federalized the entire Arkansas National Guard and deployed the 101st Airborne to integrate Little Rock’s Central High School in 1957. In this case, Arkansas Gov. Orval Faubus had ordered the National Guard to “preserve the peace” by denying nine black students access to the school in direct opposition to the Supreme Court’s decision in Brown vs. Board of Education. Again, this situation is not directly analogous to the current situation since Gov. Faubus was refusing to accept the Supreme Court’s ruling.

The Insurrection Act was used again in 1962 when riots broke out in Oxford, Mississippi over the admission of a black air force veteran, James Meredith, to Ole Miss. President Kennedy used federal agents as well as US Army troops and the federalized Mississippi National Guard to put down riots on the campus. This action, however, was conducted with the cooperation of Governor Ross Barnett, a segregationist Dixiecrat, who wanted to maintain civil order.

President Kennedy used the Insurrection Act twice more in 1963. In June of that year, he federalized the National Guard to integrate the University of Alabama. In September, Kennedy again federalized Alabama National Guard troops to force school integration in the state. These actions were taken against the will of Gov. George Wallace, another Dixiecrat, who, like Gov. Faubus, was in violation of the Supreme Court ruling mandating integration. No regular army troops seem to have been used in these deployments.

In 1989, George Herbert Walker Bush used the Insurrection Act to deploy military police and National Guard troops to St. Croix in the US Virgin Islands to quell widespread looting after Hurricane Hugo. It is not clear whether territorial government officials requested the aid but governmental authority seemed to have broken down after National Guardsmen and local police joined in the looting.

The Bush Administration considered using the Insurrection Act in the aftermath of Hurricane Katrina in 2005. Ultimately, President George W. Bush decided against using federal troops under the Act even though the Congressional Research Service determined that he had the authority to do so. The Bush Administration cited federalism concerns and the desire to avoid impinging on Louisiana’s sovereignty as a reason for not invoking the Act. After Katrina, the Insurrection Act underwent more revisions that specifically included natural disasters as a trigger for use of the federal military.

As it stands today, the Insurrection Act includes five parts. These are so brief that they can be included here in their entirety:

“Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.” [251 Federal aid for State governments]

“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.” [252 Use of militia and armed forces to enforce Federal authority]

“The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or

(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” [253 Interference with State and Federal law]

“Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.” [254 Proclamation to disperse]

“For purposes of this chapter, the term ‘State’ includes Guam and the Virgin Islands.” [Paragraph 255 Guam and Virgin Islands included as “State”]

The letter of the law states that in paragraph 251 that states may request federal military aid, but paragraphs 252 and 253 give the president additional authority to intervene unilaterally. The law gives the President Trump the authority to deploy the US military to put down the riots, “domestic violence,” or to enforce federal laws.

There is a process to be followed, however. Paragraph 255 mandates that the president must issue a “proclamation,” typically an Executive Order, that orders “the insurgents to disperse and retire peaceably to their abodes within a limited time.” As of this writing, President Trump has issued no such proclamation.

In summary, President Trump does have the authority under the law to order a military intervention to put down the riots. If he does so, however, he will likely be the first president to use the military to put down riots against the will of state governments that are not in violation of federal court orders.

Even though President Trump has the necessary authority to make such a move, what is legal is not necessarily a good idea. In the current situation, peaceful protesters have legitimate gripes against a judicial system that too often protects police who violate the rights of American citizens. As Erick Erickson and others have pointed out, there seem to be different groups at work. Often, it is not black protesters who are carrying out the violence but young, white radicals. The irony of using police and military violence against peaceful people who are protesting police brutality may be lost on President Trump.

And peaceful protesters are being violently dispersed. Most notably, the police attacked a peaceful crowd in Washington’s Lafayette Park with tear gas ahead of President Trump’s visit to St. John’s Church yesterday.

There have been other cases of indiscriminate violence by police as well. A Twitter video from Minneapolis shows police marching down the street ordering residents to get into their houses. When they see the Twitter user peacefully filming them on the porch of her house, the police yell, “Light’em up” and fire what appears to be paintballs at the residents. A Facebook video from Indianapolis shows police firing teargas at a crowd that is peacefully praying and singing.

A better way of handling the situation would be to let the peaceful protests play out. Where local and state law enforcement cannot control the violent rioters and looters, the president could follow the example of previous presidents who federalized control of the National Guard to restore order. Regular army troops should be deployed into these hotspots only as a last resort unless state authorities request them.

By taking the initiative, President Trump is making the same mistake that the rioters make. Where most Americans sympathize with the cause of opposing police brutality, most also oppose the violent behavior, which diminishes support for the legitimate cause. Similarly, most Americans want the violence stopped but sending in the military would reframe the debate from whether the protests should be violent to whether Donald Trump is acting dictatorially. The optics look especially bad since the president has spent the past week inflaming tensions rather than trying to calm the situation.

While National Guard troops are commonly used in civil disturbances, the deployment of regular army troops to put down the violence against the wishes of state governments and without a violation of federal law would escalate the situation and could very well end up making problems worse. Considering that many of the riots are in swing states, the perception that President Trump is invading may well negatively impact the president’s re-election chances. There is a reason that presidents have used the military for domestic law enforcement sparingly.

If you would like to continue the discussion on social media, you can visit David Thornton’s Facebook page or follow him on Twitter.

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