The Insurrection Act of 1807

By: Sarah Johnson

We’ll be taking a quick look at the Insurrection Act of 1807 and seeing where we go from here. Possibly with more updates to come depending on how events unfold.

What is the Insurrection Act of 1807?

The Insurrection Act is Title 10, Chapter 13, Section 252 of the US Code, titled “Use of militia and armed forces to enforce Federal authority”. There are three parts of the act which essentially say that if the President of the United States desires to activate the military to operate in within the boarders of the US, they must activate the 213-year-old act to do so. The first part of the code says:

If there is an insurrection in a State, the President, at the request of the State’s legislature, or Governor if the legislature cannot be convened, may call National Guards of other States into Federal service as well as use the Federal military to suppress the insurrection.

This first section states the President can only activate the military at the request of the legislature or a governor of a state in order to suppress insurrections within their state. This part of the act was last invoked during the 1992 Rodney King riots in Los Angeles after California Governor Pete Wilson requested President George H.W. Bush invoke it.

The second two sections of this act allow the President to use the military within the United States without the request of state representatives. The second section allows the President to deploy the military if they believe it necessary “to suppress an insurrection, domestic violence, unlawful combination or conspiracy.” The text in this section reads:

Whenever the President considers that unlawful obstructions, combinations, or assemblages or rebellion against authority of United States makes it impracticable to enforce the law of the United States in any State or territory by judicial proceedings, the President may call into Federal service the militia of any State and use the Federal military to enforce the laws or suppress the rebellion.

The third, and most generalized section of the three, states the President can use the armed forces when there is an interference with federal or state law. The President can do this to suppress behavior by the public if

(a) it so hinders the execution of law of that State and of the United States and it deprives citizens of constitutional rights (e.g. due process); or (b) it opposes or obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of rights, the State is deemed to have denied its citizens equal protection of laws.

The last time Presidents enacted this without an ask from the state, was when the state violated people’s civil rights. In 1957 President Eisenhower ordered the 101st Airborne Division into Little Rock, Arkansas, and federalized the entire Arkansas National Guard in order to enforce a court order permitting nine black students to attend a previously all-white high school. Kennedy and Johnson also used the same legal authority to enforce court orders for desegregation.

The also law authorizes use of force to protect any of the three specified assets:

1. Assets vital to national security (think control facilities)
2. Inherently dangerous property (think weapons, bombs)
3. National critical infrastructure (think oil pipelines, water supply)

To read more about critical infrastructure in the context of protests, read this blog from last year.

According to the law, the President must first to issue a proclamation to “immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time,” or a proclamation to disperse. The President needs help from the attorney general in order to officially invoke the Insurrection Act.

Why are we talking about this?

Although the President is the commander-in-chief of the Armed Forces, they lack the authority to use the military in any manner they please. Mid-day on June 1st, 2020, from the Rose Garden, Trump announced he plans to use the US military to stop the riots across the nation sparked by the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, and countless other black people. Trump said in his announcement, amid smoke and flash bangs fired by police to push protestors back from the White House,

I am mobilizing all federal and local resources, civilian and military, to protect the rights of law abiding Americans. We are ending the riots and lawlessness that has spread throughout our country. We will end it now.

If a city or state refuses to take the actions necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.

After his announcement, and after the police and National Guard had completely cleared Lafayette Park of peaceful protesters, Trump and some aids walked across the vacant street, stood outside St. John’s Church (which suffered damage on Saturday from protests), and held a Bible to pose for pictures.

This move comes hours after Trump made it known he does not believe Governors are doing enough to stop the riots in their states. Governors have not asked for active military personal, but instead would prefer a National Guard presence. According to reports, Trump told governors they “have to get much tougher” to end the uprisings.

In audio obtained by @CBSNEws, Trump tells governors: “Washington was under very good control, but we’re going to have it under much more control. We’re going to pull in thousands of people.” (more)

— Ed O’Keefe (@edokeefe) June 1, 2020

The National Guard and Coast Guard can legally act as law enforcement within the US. Our troops on active duty cannot do this without violating the Posse Comitatus Act. This 142-year-old law states “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” Basically, it prohibits US military personnel from direct participation in law enforcement activities. The prohibited activities include: “conducting surveillance, searches, pursuit and seizures; or making arrests on behalf of civilian law enforcement authorities.”

If federal military forces are being used to respond to civil unrest within the United States of America, they must comply with Standing Rules for the use of Force (SRUF). Rules put forth by SRUF are generally less permissive than the rules the military uses in more traditional military missions, the Standing Rules of Engagement (SROE). When examining at what types of force can be used and the justifications, these rules state that force is to be used only as a last resort, and the should be the minimum force necessary. Deadly force is also authorized, but only to be used when all lesser means have failed or cannot be reasonably employed.

Just a side note for using controversial Acts that are applicable to the time we are living in, the President did not invoke the Defense Production Act to mobilize PPE manufacturing and other measures to support our still ongoing fight against COVID-19. To read more about that, read this post.

We’ll keep following the Insurrection Act of 1807 situation as it develops and post updates as warranted.

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