What is the Insurrection Act?
A centuries-old law has been thrust into the national spotlight following the president’s threats to use the military to restore order amid protests over George Floyd’s death.
Military police respond to a protest near Lafayette Park ahead of President Trump's trip to St. John's Church on Monday in downtown Washington.
PRESIDENT Donald Trump's threats to deploy active duty military forces to quell nationwide protests have sparked debate at the highest levels of government and drawn widespread attention to a centuries-old law granting the commander in chief authority to allow American soldiers to police their fellow citizens.
The collection of statutes now known as the Insurrection Act provides the president with the authority to employ active duty military against U.S. citizens during extraordinary circumstances of civil unrest or rebellion that threaten a state or its government, superseding other laws that generally prevent the use of forces like the Army domestically in a law-enforcement capacity.
But the act's infrequent use in U.S. history has left many Americans unfamiliar with its provisions, despite the broad powers it conveys.
George H.W. Bush was the last president to exercise the authority, invoking it during the 1992 riots in LA. It was also invoked amid widespread riots in 1968 around the nation's capital and elsewhere following the assassination of Martin Luther King Jr. And Presidents Dwight Eisenhower and John F. Kennedy called upon it to enforce desegregation during the civil rights era over the objections of state governments.
For the most part, presidents have hesitated to invoke the act for fear of appearing tyrannical, as many legal experts believe they pose an uncomfortable conflict with signature laws like the Posse Comitatus Act of 1878 that were designed to create an unambiguous legal separation between the federal military and the citizens it is bound to defend.
George W. Bush, for example, did not enact the Insurrection Act in response to Hurricane Katrina in 2005 out of concerns about politics and precedent amid defiance from local leaders. The act was shortly after amended to allow its use in times of natural disaster, yet that change itself was repealed just a few years later amid unanimous opposition from the governors of all 50 states.
The laws that led to what is today the Insurrection Act originated in the late 1700s and have been amended several times since then. Congress passed the act itself in 1807, establishing the conditions under which the president could deploy the military against American citizens, and approved enforcement measures twice in subsequent decades that governed how the president could wield those powers. The law would change over time but as originally passed was more narrowly crafted to punish uprisings against the government.
It is generally reserved for instances in which state authorities request the help of the federal government, though the president has some limited leeway to follow through unilaterally if, for example, he believes civil disobedience obstructs U.S. laws. And the nonpartisan Congressional Research Service stipulated in a 2006 report that presidents considering employing such powers generally do so "upon the recommendation of the Attorney General and, if necessary, the request of the governor."
Presidential historian Aaron Scott Crawford, an assistant editor at the University of Tennessee's Papers of Andrew Jackson project, says the Insurrection Act dates back to the presidency of Thomas Jefferson, shortly after his political rival, former Vice President Aaron Burr, engaged in an act of perceived insurrection when he attempted to create an independent republic in the fall of 1806 by forcibly annexing Spanish territory in Louisiana and Mexico. Burr was ultimately arrested the following February.
Jefferson, in an annual message to Congress in December 1806, noted that the law had mechanisms for punishing people who commit crimes that could result in rebellion.
"But would it not be salutary to give also the means of preventing their commission?" he asked.
Crawford, and constitutional law experts, believe the early laws show that Congress should be involved in instances of using the active duty military against U.S. citizens.
The authority was restrained by the Posse Comitatus Act, which President Rutherford B. Hayes signed into law, in part to end the use of federal troops in the post-Civil War South. That act prohibited the deployment of active duty military forces domestically, unless such a move had been authorized by the Constitution or an act of Congress. A key exception was that the president could still use the powers of the Insurrection Act as a fail-safe to fend off a rebellion that posed a significant enough threat to the government.
But taking that step came with a very clear caveat: According to the U.S. Code, "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."
Steve Vladek, a professor at the University of Texas, wrote in a string of tweets late Monday that among the issues with the president's consideration of such a drastic and historic step was that his casual threats left some confusion about his intentions.
"The Insurrection Act requires a formal proclamation in order to be invoked. Trump threatened to use it if state National Guards aren't effective," he wrote. "But vague threats and ambiguous speeches don't cut it."