VANITY: The Insurrection Act Explained

The law, which lets the president deploy the military domestically and use it for civilian law enforcement, is dangerously vague and in urgent need of reform.

The Insurrection Act needs a major overhaul. Originally enacted in 1792, the law grants the president the authority to deploy the U.S. military domestically and use it against Americans under certain conditions. While there are rare circumstances in which such authority might be necessary, the law, which has not been meaningfully updated in over 150 years, is dangerously overbroad and ripe for abuse.

The Insurrection Act authorizes the president to deploy military forces inside the United States to suppress rebellion or domestic violence or to enforce the law in certain situations. The statute implements Congress’s authority under the Constitution to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” It is the primary exception to the Posse Comitatus Act, under which federal military forces are generally barred from participating in civilian law enforcement activities.

Although it is often referred to as the “Insurrection Act of 1807,” the law is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871. Today, these provisions occupy Sections 251 through 255 in Title 10 of the United States Code. What does invoking the Insurrection Act allow the president and military to do?

Under normal circumstances, the Posse Comitatus Act forbids the U.S. military — including federal armed forces and National Guard troops who have been called into federal service — from taking part in civilian law enforcement. This prohibition reflects an American tradition that views military interference in civilian government as being inherently dangerous to liberty.

Invoking the Insurrection Act temporarily suspends the Posse Comitatus rule and allows the president to deploy the military to assist civilian authorities with law enforcement. That might involve soldiers doing anything from enforcing a federal court order to suppressing an uprising against the government. Of course, not every domestic use of the military involves law enforcement activity. Other laws, such as the Stafford Act, allow the military to be used to respond to natural disasters, public health crises, and other similar events without waiving the restrictions of the Posse Comitatus Act.

In theory, the Insurrection Act should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage. However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically. When can the president invoke the Insurrection Act?

Troops can be deployed under three sections of the Insurrection Act. Each of these sections is designed for a different set of situations. Unfortunately, the law’s requirements are poorly explained and leave virtually everything up to the discretion of the president.

Section 251 allows the president to deploy troops if a state’s legislature (or governor if the legislature is unavailable) requests federal aid to suppress an insurrection in that state. This provision is the oldest part of the law, and the one that has most often been invoked.

While Section 251 requires state consent, Sections 252 and 253 allow the president to deploy troops without a request from the affected state, even against the state’s wishes. Section 252 permits deployment in order to “enforce the laws” of the United States or to “suppress rebellion” whenever “unlawful obstructions, combinations, or assemblages, or rebellion” make it “impracticable” to enforce federal law in that state by the “ordinary course of judicial proceedings.”

Section 253 has two parts. The first allows the president to use the military in a state to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that “so hinders the execution of the laws” that any portion of the state’s inhabitants are deprived of a constitutional right and state authorities are unable or unwilling to protect that right. Presidents Dwight D. Eisenhower and John F. Kennedy relied on this provision to deploy troops to desegregate schools in the South after the Supreme Court’s landmark decision in Brown v. Board of Education.

The second part of Section 253 permits the president to deploy troops to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” in a state that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This provision is so bafflingly broad that it cannot possibly mean what it says, or else it authorizes the president to use the military against any two people conspiring to break federal law. Who decides when the conditions for deployment have been met?

Nothing in the text of the Insurrection Act defines “insurrection,” “rebellion,” “domestic violence,” or any of the other key terms used in setting forth the prerequisites for deployment. Absent statutory guidance, the Supreme Court decided early on that this question is for the president alone to decide. In the 1827 case Martin v. Mott, the Court ruled that “the authority to decide whether [an exigency requiring the militia to be called out] has arisen belongs exclusively to the President, and . . . his decision is conclusive upon all other persons.”

However, there are exceptions to the general rule that courts can’t review a president’s decision to deploy. In subsequent cases, the Supreme Court has suggested that courts may step in if the president acts in bad faith, exceeds “a permitted range of honest judgment,” makes an obvious mistake, or acts in a way manifestly unauthorized by law.

Moreover, even in cases where the courts will not second-guess the decision to deploy troops, the Supreme Court clarified in Sterling v. Constantin (1932) that courts may still review the lawfulness of the military’s actions once deployed. In other words, federal troops are not free to violate other laws or trample on constitutional rights just because the president has invoked the Insurrection Act. Is invoking the Insurrection Act the same as declaring martial law?

The Insurrection Act does not authorize martial law. The term “martial law” has no established definition, but it is generally understood as a power that allows the military to take over the role of civilian government in an emergency. By contrast, the Insurrection Act generally permits the military to assist civilian authorities (whether state or federal), not take their place. Under current law, the president has no authority to declare martial law. How has the Insurrection Act been used in the past?

The Insurrection Act has been invoked numerous times throughout American history for a variety of purposes. Presidents George Washington and John Adams used it in response to early rebellions against federal authority. President Abraham Lincoln invoked it at the start of the Civil War, and President Ulysses Grant used it to crush the first incarnation of the Ku Klux Klan in the 1870s. Several other presidents, including Andrew Jackson, Rutherford Hayes, and Grover Cleveland, have deployed troops under the Insurrection Act to intervene in labor disputes, invariably on the side of employers. Most famously, Presidents Eisenhower, Kennedy, and Lyndon B. Johnson all invoked the Insurrection Act during the civil rights movement to enforce federal court orders desegregating schools and other institutions in the South. When was the Insurrection Act last invoked?

The Insurrection Act was last invoked in 1992, when the governor of California requested military aid from President George H.W. Bush in response to civil unrest in Los Angeles that followed the acquittal of four white police officers charged with beating Black motorist Rodney King. At 29 years and counting, this is the longest period the United States has ever gone without an invocation of the Insurrection Act.

No president has unilaterally invoked the Insurrection Act against a state’s wishes since Lyndon Johnson did so to provide protection for civil rights activists in Alabama marching from Selma to Montgomery in 1965. How should the Insurrection Act be reformed?

The lack of clear standards within the Insurrection Act itself, combined with the Supreme Court’s ruling in Martin v. Mott, has created a situation where the president has almost limitless discretion to deploy federal troops in cases of civil unrest. Such unbounded authority to use the military domestically has always been dangerous. In the 21st century, it is also unnecessary and untenable. The United States has changed profoundly in the 150 years since the Insurrection Act was last amended, as have the capabilities of state and federal civilian authorities and the expectations of the American people. The Insurrection Act — arguably the most potent of the president’s emergency powers — should reflect those realities.

To address these concerns, Congress should amend the Insurrection Act to define more clearly and precisely what situations may trigger it. Congress also should establish mechanisms for review of the president’s decision that will guard against abuse while still preserving the president’s flexibility in a crisis.

When I served in the National Guard in the late 80s to mid 90s we were trained to handle domestic riots. Note this was NOT the same thing as taking place in civilian law enforcement. We were not trained or authorized to go around writing police reports and deciding how to apply the law and such like cops do. But we WERE trained to aid the police when they were faced by violent mobs...say EXACTLY like Antifa.

Then how did two presidents from different parties—Eisenhower and Kennedy—get away with calling in federal troops against our fellow Americans?
>That was different
Yes, it was: residents of Arkansas and Alabama were not committing arson, assaulting federal LEOs and blockading federal buildings.

Seems a matter of time before an ICE agent is shot.

A group of citizens in Chicago stopped an ICE arrest to fight with ICE agents. Saw the video today.

He is setting it up because it’s coming.

This is incredibly simple to understand, even for brainwashed democrats.

Other than foreign embassies and Indian Reservations, there is no place in the US or any of its territories where federal law does not apply.

The US Constitution states explicitly that Federal Law is the Supreme law of the land.

There are no caveats, no exceptions.

Congress created these immigration laws and it is the sworn duty of the president to uphold these laws.

End of discussion.

Anyone old enough or who can search the ‘net remembers or can see the 101st airborne holding southerners angry with the federal government interfering with the states’ police powers, at bayonet point.
In Portland a few nights ago, some [expletive deleted] was swanning around waving a red Soviet flag.
They are supporting an invasion sponsored by their party that broke federal immigration laws. They are breaking laws now, impeding federal officers in the performance of their duties.
This is is open insurrection.

I think it is pretty clear.

"...In theory, the Insurrection Act should be used only in a crisis that is truly beyond the capacity of civilian authorities to manage. However, the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically..."

I read this and thought: "What is the difference between 'beyond the capacity of civilian authorities to manage' and 'beyond the refusal of the civilian authorities to manage'..."

To me, this is closer to a state initiated secession because they REFUSE to address the situation.

This is akin to the stupid characterization of the invasion by illegals as a "Border Crisis". That was never a crisis. It was a deliberate process by the Democrats to BREAK the existing law and decriminalize that law. Leftists like that jack-off Pritzger WANT this violence.

Yes, it appears that they’re intentionally provoking civil violence.

2020 was the closest these Marxists came to their utopian dream of absolute power.

Rather than voluntarily surrender their vile agenda and advocate policies agreeable to American voters, they made the conscious decision to abandon their voters and import foreigners that they could manipulate into voting for them.

What they did was the very definition of treason, and every one of them should be taken into custody and charged with facilitating an illegal invasion of the US.

No bail, as every one of them is a flight risk.

Biden, Mayorkis, Garland, the whole lot, no exceptions.

When state and local officials defy and obstruct Federal law and even make declarations that Federal law does not apply in their jurisdictions I don’t know what else it could be called other than insurrection.

Although seditious conspiracy might apply.

I think the keyword in all of this is “militia.” We have fallen so far from the original intent of the Constitution that even the term “militia” has been impugned.

The militia per our founders’ understanding comprises all able-bodied men from a local community who are armed and trained in the use of those arms to protect the community. Membership in the militia was a civic duty for our country up until the 20th century. In the case of the Insurrection Act, it calls out militia as something the president could call up, as they were generally understood to not be professional soldiers from across the nation but instead members of the local community. It was likely assumed that if the local community tended to their civic duties, then insurrection wouldn’t be a problem, but here we are.

The National Guard is NOT the militia. They are trained and provided arms similarly to the general military, funded by the government, and usually staffed by former full-time soldiers. If we had a nation that understood the civics of our founding, we wouldn’t be in this situation for a variety of reasons, militia notwithstanding.

“To address these concerns, Congress should amend the Insurrection Act to define more clearly and precisely what situations may trigger it. Congress also should establish mechanisms for review of the president’s decision that will guard against abuse while still preserving the president’s flexibility in a crisis.”

Good luck with getting the Senate to agree with any of that.

Trump, like Washington, Lincoln, FDR, Ike, JFK, Johnson et al.....

.....do what he wants and let the historians justify it....which if he wins, they will.

Pursued to its end....Trump will win.

I pray he pursues it to its end.

But what do I know and I do not feel strongly about it. :->

It can only be part of a multifaceted strategy but, as I’ve elaborated prior, I’ve grave concern about such moves without Congressional action for obvious reasons.

One extension to address the core of the problem demonstrates that a federal troop/reinforcement response is rather myopic. What we’re seeing isn’t just a reaction: It’s a strategy, highlighting a much different response requirement.

https://freerepublic.com/focus/news/4344476/posts?page=28#28

The useful idiots getting all the attention? C’mon, man.

Think about it.

I am hoping and praying that the year 2020 was their “high water” mark.

Strange.

I try to tamp down the conspiracy theorist in me, but over the last few decades, I have come to believe there are forces outside this country that are driving this, and not just outside money.

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