Replies

As came out in the discussion, the changes to the Insurrecdtion Act would have prevented forced integration in Alabama as under President Eisenhower.

To me, the important thing is that members of the military have no search or arrest powers unless EXPLICITLY authorized elsewhere.

At the end of subtitle E of title X, insert the following:

SEC. 10__. CURTAILING INSURRECTION ACT VIOLATIONS OF
INDIVIDUALS’ LIBERTIES.

(a) Federal Aid for State Governments.—Section 251 of
title 10, United States Code, is amended—
(1) by striking ``Whenever’’ and inserting ``(a) In
General.—Whenever’’; and
(2) by adding at the end the following new subsection:
``(b) Certification to Congress.—(1) The President may not
invoke the authority under this section unless the President
and the Secretary of Defense certify to Congress that the
State concerned is unable or unwilling to suppress an
insurrection described in subsection (a).
``(2) A certification under paragraph (1) shall include the
following:
``(A) A description of the circumstances necessitating the
invocation of the authority under this section.
``(B) Demonstrable evidence that the State concerned is
unable or unwilling to suppress such insurrection, and a
legal justification for resorting to the authority under this
section to so suppress.
``(C) A description of the mission, scope, and duration of
use of members of the armed forces under this section.’’.
(b) Use of Militia and Armed Forces to Enforce Federal
Authority.—Section 252 of title 10, United States Code, is
amended to read as follows:

``Sec. 252. Use of militia and armed forces to enforce
Federal authority

``(a) Authority.—Whenever 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, the President may
call into Federal service such of the militia of any State,
and use such of the armed forces, as the President considers
necessary to enforce those laws or to suppress the rebellion.
``(b) Certification to Congress.—(1) The President may not
invoke the authority under this section unless the President
and the Secretary of Defense certify to Congress that the
State concerned is unable or unwilling to suppress an
unlawful obstruction, combination, or assemblage, or
rebellion against the authority of the United States
described in subsection (a).
``(2) A certification under paragraph (1) shall include the
following:
``(A) A description of the circumstances necessitating the
invocation of the authority under this section.
``(B) Demonstrable evidence that the State concerned is
unable or unwilling to suppress such unlawful obstruction,
combination, or assemblage, or rebellion against the
authority of the United States, and a legal justification for
resorting to the authority under this section to so suppress.
``(C) A description of the mission, scope, and duration of
use of members of the armed forces under this section.’’.
(c) Interference With State and Federal Law.—Section 253
of title 10, United States Code, is amended—
(1) by striking ``The President’’ and inserting ``(a)
Authority.—(1) The President’’;
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(3) by striking ``In any situation covered by clause (1),’’
and inserting ``(2) In any situation covered by paragraph
(1)(A),’’; and
(4) by adding at the end the following new subsection:
``(b) Certification to Congress.—(1) The President may not
invoke the authority under this section unless the President
and the Secretary of Defense certify to Congress that the
State concerned is unable or unwilling to suppress an
insurrection, domestic violence, unlawful combination, or
conspiracy, as described in subsection (a).
``(2) A certification under paragraph (1) shall include the
following:
``(A) A description of the circumstances necessitating the
invocation of the authority under this section.
``(B) Demonstrable evidence that the State concerned is
unable or unwilling to suppress such insurrection, domestic
violence, unlawful combination, or conspiracy, and a legal
justification for resorting to the authority under this
section to so suppress.
``(C) A description of the mission, scope, and duration of
use of members of the armed forces under this section.’’.
(d) Consultation With Congress.—
(1) In general.—Chapter 13 of title 10, United States
Code, is amended by adding at the end the following new
section:

``Sec. 256. Consultation

``The President, in every possible instance, shall consult
with Congress before invoking the authority under section
251, 252, or 253 of this title.’’.
(2) Clerical amendment.—The table of sections at the
beginning of chapter 13 of title 10, United States Code, is
amended by adding at the end the following new item:

``256. Consultation.’’.

(e) Restriction on Direct Participation by Military
Personnel.—
(1) In general.—Such chapter is further amended by adding
at the end the following new section:

``Sec. 257. Restriction on direct participation by military
personnel

``(a) In General.—No activity under this chapter shall
permit direct participation by a member of the Army, Navy,
Air Force, Marine Corps, or Space Force in a search, seizure,
arrest, or other similar activity unless participation in
such activity by such member is otherwise expressly
authorized by law.
``(b) Regulations.—The Secretary of Defense shall
prescribe such regulations as may be necessary to ensure
compliance with subsection (a).
``(c) Rule of Construction.—Nothing in this section shall
be construed to limit authority of law enforcement personnel
of the armed forces on Federal military installations’’.
(2) Clerical amendment.—The table of sections at the
beginning of such chapter is further amended by adding at the
end the following new item:

``257. Restriction on direct participation by military personnel.’’.
The SPEAKER pro tempore. Pursuant to House Resolution 1053, the
gentlewoman from Texas (Ms. Escobar) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentlewoman from Texas.

{time} 1445

Ms. ESCOBAR. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, for over 200 years, Presidents have had the authority to
send the military into American communities at times of unrest.
The Insurrection Act is a power many Americans are unaware of
primarily because it has historically rarely been invoked. It has, at
times, been used by Presidents at the request of State Governors, but
during our Nation’s tumultuous civil rights era, it was an authority
used by Presidents Eisenhower, Kennedy, and Johnson against the wishes
of Southern Governors.
Their use of the military in American communities helped protect the
civil rights of African Americans at a time of deep national unrest. In
fact, the Insurrection Act was used to protect Selma to Montgomery
marchers in 1965, protection needed by the marchers after Bloody
Sunday, where our beloved late colleague, John Lewis, was beaten and
bloodied. This is an important Presidential power intended to restore
peace and protect Americans.
My amendment does not seek to undermine or eliminate this authority.
Instead, it is intended to bring about transparency and close a
loophole.
America is founded in a Constitution that enshrines a system of
separate but coequal branches of government. As such, Congress has a
duty to evaluate for any Presidential power where consultation may be
necessary and to provide oversight.
Today, if the President of the United States chooses to use military
force abroad, the President would have to consult with Congress. Yet
that same consultation is not required for use of military force on
American soil. My amendment closes that loophole providing for
consultation and oversight similar to what is currently required when
the military is called on to engage overseas.
The NDAA is our annual opportunity and responsibility to evaluate and
authorize defense activities. With this amendment to a centuries-old
law, Congress and future Presidents can ensure that Insurrection Act
authority, when used, is consistent with our history of preserving
peace and civil rights in America.
Mr. Speaker, I reserve the balance of my time.
Mr. LAMBORN. Mr. Speaker, I claim the time in opposition.
The SPEAKER pro tempore. The gentleman from Colorado is recognized
for 5 minutes.
Mr. LAMBORN. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this amendment would be a major change to the
Insurrection Act first invoked by Thomas Jefferson more than 200 years
ago. Under this amendment, a President would not be able to act quickly
and decisively in the event of riots that are not being controlled at
the State or municipal

[[Page H3330]]

level. He would have to, along with the Secretary of Defense, certify
certain findings to Congress and then consult with Congress.
This would hinder and delay needed action to preserve domestic peace.
Any military personnel then deployed would have burdensome restrictions
placed upon them that would make them less effective in controlling
violence and riots.
It is ironic that we are considering this amendment on a day when we
are honoring the life of Representative John Lewis, an icon in the
civil rights movement whose passing I, too, mourn.
You see, Mr. Speaker, had this amendment been law during the 1950s
and 1960s, the progress of civil rights in this country would have been
stifled. By being forced to consult with Congress, Presidents
Eisenhower, Kennedy, and Johnson could have been blocked by a Senate
majority that at the time was preventing all progress on civil rights.
It is a matter of history.
My Uncle Jim Lamborn was a Federal employee at Leavenworth
Penitentiary in 1957 when he was deputized as a marshal and sent to
Little Rock, Arkansas, with many others so Black children could go to
integrated public schools. President Eisenhower had to oppose the
Arkansas Governor and act unilaterally to make this happen. If
Eisenhower had to oppose an obstructionist House or Senate also, it may
have never happened.
So, looking at today’s headlines, I would like to ask the sponsor of
this amendment, in light of the violence and rioting in Seattle and
Portland, which for whatever reasons are not being controlled by the
mayors of those cities, would President Trump be justified to invoke
the Insurrection Act as amended by this amendment?
Ms. ESCOBAR. Will the gentleman yield?
Mr. LAMBORN. I yield to the gentlewoman from Texas.
Ms. ESCOBAR. Mr. Speaker, this is not about when or whether a
President utilizes the Insurrection Act. This is simply about
consulting with Congress in the same way that we expect a President to
consult with Congress.
Mr. LAMBORN. Reclaiming my time, Mr. Speaker, apparently the
gentlewoman is not willing to answer this question. If she can’t answer
this question, then I don’t think we have to take it seriously. I think
it is a political gimmick.
Mr. Speaker, I reserve the balance of my time.
Ms. ESCOBAR. Mr. Speaker, I yield such time as she may consume to the
gentlewoman from New Jersey (Ms. Sherrill).
Ms. SHERRILL. Mr. Speaker, Federal forces should only be deployed in
the United States with the utmost transparency and only when it is
absolutely necessary to protect our country and our citizens. What we
are seeing in Portland and what we saw in Washington is deeply
disturbing, and it is contrary to the values of a democratic society.
As a veteran, I am particularly concerned when it implicates our
military. Congress has a responsibility to exercise oversight over the
use of military force. Unfortunately, in recent months, we have seen
threats of force against U.S. citizens without consulting Congress and
without delineating the legal authorities under which the forces are
operating.
The Insurrection Act has been used with great and important effect to
integrate elementary schools and universities, suppress the Ku Klux
Klan, and to protect the American people. This amendment does not
prevent any President from employing the Insurrection Act should it
become necessary, nor would it prevent the Insurrection Act from being
used to protect Americans’ civil rights in the future. It simply
ensures that the Insurrection Act is used in keeping with centuries of
precedent—as a last resort and with strong oversight by Congress.

Mr. Speaker, I urge my colleagues to support this amendment.
Mr. LAMBORN. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman
from Mississippi (Mr. Kelly).
Mr. KELLY of Mississippi. Mr. Speaker, I thank the gentleman for
yielding.
Mr. Speaker, this is dangerous. This same amendment, but in a lesser
form not nearly as dangerous and not nearly as restrictive, was
defeated in a bipartisan manner in committee. The reason that it was is
because we are having a knee-jerk reaction to what we think the
President might do—not what he did, but what we think he might do.
This is dangerous. I can tell you, Mr. Speaker, I come from a State
where, had the Insurrection Act not been in effect when Eisenhower and
Kennedy were Presidents, we would be in a different-looking Chamber
today. They allowed the schools of Mississippi, Arkansas, and Alabama
to be integrated. Those Presidents allowed, through the Insurrection
Act, the Freedom Riders to go through the State of Mississippi with the
National Guard.
But here we are with more restrictions. Not only do we want to put
troops out there when we say it is okay—and I don’t know who ``we’’
is, but it doesn’t need to be a ``we’’—but we are going to further
restrict the President, and we are going to tie the hands of those
servicemembers whom we send in harm’s way. It is dangerous. They can’t
search, and they can’t participate.
Mr. Speaker, we need to defeat this amendment, and there needs to be
a long discussion if we want to change that. But it doesn’t need to be
in this bill. This is a poison pill. Let’s defeat this amendment.
Ms. ESCOBAR. Mr. Speaker, I yield 1 minute to the gentlewoman from
Minnesota (Ms. Omar).
Ms. OMAR. Mr. Speaker, if a President decides to deploy troops
domestically, the very least we can do as Congress is demand the same
level of transparency that we expect when our troops are sent abroad.
It is true that the Insurrection Act was used to integrate Little
Rock Central High School and the University of Mississippi. It is also
true that it was used to crush slave revolts and labor organizing.
This amendment will go a long way towards helping inform Congress and
the American people how a President intends to use the authority.
This is not an abstract conversation. When the President threatened
to invoke the Insurrection Act recently, he was threatening my
constituents and our constituents. Unmistakably, he was threatening
people exercising their First Amendment rights.
There can be genuine emergencies when these powers are needed. We
must protect against all possible abuses in situations where the
emergencies do not exist.
Mr. LAMBORN. Mr. Speaker, I yield 1 minute to the gentleman from
Michigan (Mr. Bergman), who is a retired three-star general and Member
of the House Armed Services Committee.
Mr. BERGMAN. Mr. Speaker, I oppose this amendment. It would require
the President and the Secretary of Defense to certify to Congress with
demonstrable evidence that a State is unwilling or unable to suppress
civil unrest prior to invoking the Insurrection Act.
What is demonstrable evidence? How do we define that?
At that point, who knows how much time would go by before help is
given to the city or State that needs it.
Also, the limitation placed on military personnel in this amendment
is concerning. We are telling our military that, if you go in, then you
either do nothing or you use extreme force. There is no in between.
Unfortunately, too many elected officials don’t understand the
difference between emergency response, peacekeeping, and peacemaking.
We are setting the military up for failure. This amendment is
dangerous and unnecessary, not to mention the entire debate on the
Insurrection Act is just another attack on the President. Because we
don’t like something the current President said—not even what he did,
but something he said—we are going to punish not just this President,
but every President after this and all the States that may need help in
the future.
Mr. Speaker, I urge my colleagues to oppose this amendment.
Mr. LAMBORN. Mr. Speaker, I yield back the balance of my time.
Ms. ESCOBAR. Mr. Speaker, how much time do I have remaining.
The SPEAKER pro tempore. The gentlewoman has three-quarters of a
minute remaining.
Ms. ESCOBAR. Mr. Speaker, I just want to frame this very simply. We
are asking for the same transparency and

[[Page H3331]]

consultation when a President decides to use troops on American soil as
when he decides to send troops abroad.
Mr. Speaker, I urge my colleagues to support this amendment, and I
yield back the balance of my time.
The SPEAKER pro tempore. Pursuant to House Resolution 1053, the
previous question is ordered on the amendment offered by the
gentlewoman from Texas (Ms. Escobar).
The question is on the amendment.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LAMBORN. Mr. Speaker, on that I demand the yeas and nays.
The SPEAKER pro tempore. Pursuant to section 3 of House Resolution
965, the yeas and nays are ordered.
Pursuant to clause 8 of rule XX, further proceedings on this question
will be postponed.