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 Originally enacted in 1792, the law grants the president the authority to deploy the U.S. military domestically and use it against Americans under certain conditions.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.

I admit… when you said it,it was a novel thought for me to think that Germany would surrender its sovereignty in order to escape its heinous crimes and reputation in of the 20th century by allowing itself to be subsumed into the European Union. I had never even considered that before, but if the left over there is anything like the left over here, That is entirely possible.

I am a student (albeit an amateur one) of the period in American history from about 1930 to 1955. I believe that the Communists of the world were making a serious effort to infiltrate the West and hollow it out from within in order to consume it.

I believe they came very close to achieving it in an overt way. The amount of communist agents they had installed in our government at all levels up to an including people like Alger Hiss and Harry Dexter White are prime examples of people who, even though they didn’t run those particular departments, they were widely considered to be “the right hand man“ for the people in charge, whose suggestions were taken wholly at face value and implemented for the most part by Democrat office holders, who were lazy, incompetent, or overworked.

I have always been particularly interested in Senator Joseph McCarthy, and the activities surrounding him, because I have come to believe over the years he was spot on, he was getting intelligence (possibly back channel via Venona) and have always thought he should’ve been canonized as an American hero and patriot, instead of what the left Managed to do to him via character, assassination, slander his name, and salt the very ground he walked and breathed on.

I think it’s a terrible sin that that happened, and I like it to what was done to our Vietnam veterans who returned home to the United States and were slandered and villainized by the left as “Baby Killers” and such.

There is a Freeper on this forum who has the tagline “McCarthy was right“.

One of my favorite tag lines.

Yes, Senator McCarthy was a true hero.

If you haven’t already done so, try reading a great book by Ann Coulter, Treason.
She provides an accurate account of what transpired back then, and it’s not what’s been published elsewhere.
McCarthy said that there could be as many as 50 communists in the US government, specifically the Department of State. Turns out it was more like 250.

Also, consider looking at the JBS website.
Their organization is named after the first American killed by Chinese communists in 1945, Captain John Birch. Like McCarthy, he was a courageous American.

Communism was trendy and Avant Gard in leftist circles in the 1920s. It wasn’t until later, when the excesses of Stalin became known that it was widely discredited. Oddly enough, not in left wing circles, though.

Many of these radical communists left government after the death of FDR, and the last days of Truman.
Many of them found positions as tenured professors in academia, and were waiting for the baby boomers entry about 18 years later.
This accounts, at least in part, for the radicalization of America’s youth in the 1960s.

Taking over academia was the first step in a long journey to corrupt America.
The universities began churning out left wing journalists, who then began shaping American opinions, and so on.

Anyways, I’m glad that you read.

So many do not, and it makes a huge difference in understanding how we got here.

I can see we are simpatico on this.

I read two books that turned the worm for me on the issue of Communist infiltration: “Witness” by Whittaker Chambers, and “Treason”, by Ann Coulter.

“Witness” had the pure ring of authenticity, and showed fully how the Left back in the late 1940’s was engaging in the sophisticated means of character assassination that we see even more fully formed from the Left today.

Same thing.

In “Treason” she described in detail how McCarthy had been slandered and defamed, culminating in the famous quote from the Army-McCarthy Hearings “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” where it was characterized by the Left as a poor bullied Joseph Welch standing up to the bully Joseph McCarthy.

Ann Coulter described it quite differently from any account of it I had read in books or been taught in school.

She characterized this encounter as an hourlong session of sarcastic bullying and attempted humiliation of McCarthy’s assistant Roy Cohn by attorney Joseph Welch complete with falsetto voice, facial expressions, and theatrics by Welch with McCarthy simply patiently and placidly absorbing it for a while, then when it became ridiculous and time consuming, he might appeal to the Chair of the meeting to put a stop to it, often getting no further than “Mr. Chairman...” before being cut off.

These two versions were so mutually exclusive that one of the two versions was wrong.

So, I did what I could never do before in my life, I went on the Internet, to the Library of Congress, and downloaded in PDF format all the Army-McCarthy hearing transcripts, and when I went right to that part of the hearings, it was exactly as Ann Coulter had described it.

You could see it right there. The proof. I couldn’t see or hear the people recorded, but the transcripts left no doubt.

It was then that I really began looking at that era. Read a lot of books. The best one, by far, hands down, is:

“Blacklisted by History: The Untold Story of Senator Joe McCarthy and His Fight Against America’s Enemies

It was written by M. Stanton Evans, someone there at the time as a cub reporter and who did his own research on his incredible book (instead of relying on the flawed, Leftist “Historians” of the day who salted the earth McCarthy had walked on)

It was a real political turning point in my life, reading those two books, and then examining the political world we have been living in during my life.

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